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2019 Supreme(All) 1818
IN THE HIGH COURT OF ALLAHABAD
Manoj Kumar Gupta, J.
Mohd Ansaar Alias Teepu - Appellant
Vs.
Dildar And Others - Respondent
Matters Under Article 227 No. 8067 of 2019
Decided On : 07-11-2019
C.P. Dwivedi, Adv.
The presence of the assignee of the interest of parties during pendency of litigation is necessary to enable the court to adjudicate upon and settle all the questions involved in the suit.
Headnote:
Impleadment - Partition Suit - Order 22 Rule 10 CPC - [Khemchand Shankar Chaudhary vs. Vishnu Hari Patil, (1983) 1 SCC 18; Amit Kumar Shaw vs. Farida Khatoon, (2005) 11 SCC 403; Savita Devi vs. D.J. Gorakhpur, (1999) 2 SCC 577; Dhan Lakshmi vs. P. Mohan, (2007) 10 SCC 719; Thomson Press (India) Ltd. vs. Nanak Builders and Investers (Pvt) Ltd., (2013) 5 SCC 397] - The court discussed the legal provisions under Order 22 Rule 10 CPC and the Supreme Court judgments permitting impleadment of assignee at the stage of preparation of final decree in partition suit. The court emphasized that the presence of the assignee of the interest of parties during pendency of litigation is necessary to enable it to adjudicate upon and settle all the questions involved in the suit.
Fact of the Case:
The petition challenges the order granting leave to a party defendant, who is the assignee of the interest of the original defendants in a partition suit.
Finding of the Court:
The court found no illegality in the impugned orders and dismissed the petition.
Issues: The main issue was whether the assignee of the interest of the defendants in a partition suit should be permitted to contest the suit.
Ratio Decidendi: The court relied on the legal provisions under Order 22 Rule 10 CPC and the Supreme Court judgments permitting impleadment of assignee at the stage of preparation of final decree in partition suit. It emphasized the necessity of the presence of the assignee to effectively decide the questions involved in the suit.
Final Decision: The petition was dismissed for lacking merit.
JUDGMENT :
Manoj Kumar Gupta, J.
The instant petition is directed against the order dated 28.5.2019, whereby the trial court has granted leave to respondent no. 7, to be arrayed as a party defendant, being assignee of the interest of defendants 1, 2, 3 and 4, during pendency of the partition suit. The petitioner has also challenged the order of revisional court dated 1.7.2019, dismissing the revision as not maintainable.
2. Learned counsel for the petitioner submitted that respondent no. 7, who has been granted leave to contest the suit, is not a necessary and proper party. In support of his submission, he has placed reliance on a recent judgment of Supreme Court in Gurmit Singh Bhatia vs. Kiran Kant Robinson and others, 2019 SCCOnlineSC 912.
3. The suit instituted by the plaintiff-petitioner is for partition of a building, bearing Municipal No. 638. Defendants 3 and 4 in their written statement, categorically took the plea that they had sold their undivided share to respondent no. 7 by sale deed dated 21.10.2014. The execution of sale deed dated 5.9.2014 by defendants 1 and 2 in respect of their share, in favour of respondent no. 7, is also not in dispute. Order 22 Rule 10 CPC empowers the court in case of assignment of any interest during pendency of a suit to grant leave to the assignee to prosecute/contest the suit, as the case may be.
4. The Supreme Court has permitted impleadment of the assignee of the interest of parties during pendency of litigation in the following cases: -
1. Khemchand Shankar Chaudhary vs. Vishnu Hari Patil, (1983) 1 SCC 18;
2. Amit Kumar Shaw vs. Farida Khatoon, (2005) 11 SCC 403;
3. Savita Devi vs. D.J. Gorakhpur, (1999) 2 SCC 577;
4. Dhan Lakshmi vs. P. Mohan, (2007) 10 SCC 719;
5. Thomson Press (India) Ltd. vs. Nanak Builders and Investers (Pvt) Ltd., (2013) 5 SCC 397
5. In Gurmit Singh Bhatia (supra), cited by learned counsel for the petitioner, the suit was for specific performance of an agreement for sale. An order of temporary injunction was operating in the suit, restraining the first defendant from alienating the suit property. In violation of the said injunction order, he executed sale deed in favour of third party, who thereafter sought impleadment in the suit, alleging that he is in possession of the suit property. In the said backdrop, the Supreme Court did not permit impleadment of the third party, observing thus: -
"15. As discussed herein earlier, whether Respondents 1 and 4 to 11 were proper parties or not, the governing principle for deciding the question would be that the presence of Respondents 1 and 4 to 11 before the court would be necessary to enable it effectually and completely to adjudicate upon and settle all the questions involved in the suit. As noted herein earlier, in a suit for specific performance of a contract for sale, the issue to be decided is the enforceability of the contract entered into between the appellant and Respondents 2 and 3 and whether contract was executed by the appellant and Respondents 2 and 3 for sale of the contracted property, whether the plaintiffs were ready and willing to perform their part of the contract and whether the appellant is entitled to a decree for specific performance of a contract for sale against Respondents 2 and 3. It is an admitted position that Respondents 1 and 4 to 11 did not seek their addition in the suit on the strength of the contract in respect of which the suit for specific performance of the contract for sale has been filed. Admittedly, they based their claim on independent title and possession of the contracted property. It is, therefore, obvious as noted herein earlier that in the event, Respondents 1 and 4 to 11 are added or impleaded in the suit, the scope of the suit for specific performance of the contract for sale shall be enlarged from the suit for specific performance to a suit for title and possession which is not permissible in law. In the case of Vijay Pratap v. Sambhu Saran Sinha, (1996) 10 SCC 53 this Court had
