DWARKA PRASAD, J.—Devi Singh sold the property described in para No. 1 of the plaint to Smt. Khyali Bai, Jhamak Lal claimed a right of preemption in respect of the aforesaid sale and filed a suit for pre-emption in the court of the District Judge, Udaipur against Devi Singh and Smt, Khyali Bai. In that suit, which was transferred to the court of the Additional District Judge, Udaipur, Bhagwati Lal filed an application stating that he has purchased the suit house from Smt. Khyali Bai by a registered sale deed dated May 4, 1979 and prayed that he may be joined as one of the defendants in the suit. The trial court rejected the application of Bhagwati Lal on the ground that a lis pendency transfer did not give rise to an independent liability and as Smt. Khyali Bai was already defending the suit, Bhagwati Lal "has to resign his fate throwing it with the lot of Khyali Bai." Not only that the application of Bhagwati Lal was dismissed, the learned Additional District Judge also imposed costs on him for delaying the proceedings in the suit.

2. In my view, the order passed by the learned Additional District Judge is indefensible. It appears that the learned Additional District Judge was not at all conversant with and did not care to read the provisions of Order 22 Rule 10 C.P.C, which are as under :—

"Order 22 Rule 10 (1) :— In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved."

3. It cannot be understood as to why the learned lower court thought that the purchaser pendente lite was so helpless that he should resign his fate throwing it with the lot of the vendor. In case, after the sale has taken place the vendor has lost interest in the subject-matter of the suit and fails to take necessary further steps for the proper prosecution of the defence, then the purchaser is bound to loose the case for no fault of his own, if he is not allowed to take up the defence, merely because the learned Additional District Judge did not think it proper to add him as a party defendant in the suit. It has not been submitted on behalf of Bhagwati Lal that he should be relegated back to the position as if the suit was newly instituted and he has not sought an opportunity to file a! written statement but he merely intends to take up further prosecution of the defence in the suit from the stage at which he came forward for being added as a defendant in the suit. It is open to the purchaser pendente lite either to rely upon his vendor for the continuance of his defence or if he so likes he may take further prosecution of the defence in the suit in his own hands, so that the suit may not left undefended thereafter. The provisions of Order 22 Rule 10 C.P.C. are specific and clear and they have been incorporated in the Code in order to enable an assignee or a transferee pendente lite to continue the proceedings in the suit, with the leave of the court. But the question is whether the court should unreasonably decline to grant leave to the assignee or transferee pendente lite without assigning any reason. Unless there are exceptional circumstances, the court should ordinarily allow the assignee or the transferee to take part in the further proceedings in the suit and allow him to take up the further prosecution of the case in his hands, if he so likes, in order to protect his newly acquired interest in the property. If the application under Order 22 Rule 10 C.P.C. is not mala fide or belated or the conduct of the applicant disentitled him from seeking permission, the court cannot deprive the assignee or purchaser of his rights by asking him to resign himself to fate and throw him at the mercy of the transferor or assignor. The sale in favour of Bhagwati Lal had taken place on May 4, 1979 and the application for being added as a defendant was filed by him on January 23, 1980. It cannot be sai

Click Here to Read the rest of this document