1996 Supreme(MP) 1214

IN THE HIGH COURT OF MADHYA PRADESH
TEJ SHANKAR, J.
Ummed Singh - Appellant
Versus
Shanti Devi - Respondents
Civil Revn. No.1106 of 1995 (C)
Decided On : 08-01-1996

Headnote:(1) Civil Procedure Code, 1908 – – S. 115, O.22 R. 10 and O.43 R. 1 (l) – yet order on application under O. 22 R.10 – – though appealable under O. 43 R. 1 (l) yet revision may be entertained by the High Court.

       (2) Civil Procedure Code, 1908 – – O. 1 R. 10 and O.22 R. 10 – – application under O.1 R.10 dismissed and order thereon became final – – subsequently application for impleading as party under O. 22 R. 10 cannot be allowed.

       (3) Civil Procedure Code, 1908 – – 0.22 R. 10, O. 1 R. 10 and O.39 R. 1 and 2 – – transfer during operation of injunction order – – transferee cannot be made a party either under O. 1 R. 10 or O.22 R. 10.

        Short Note

       1. This revision petition has been preferred against the order dated 13.9.1995 passed by Shri R.P. Sharma, Civil Judge Class I, Mehgaon, Distt. Bhind.

       2. Briefly narrated the facts are that a suit was filed by the respondent No. 1 against the petitioner and respondents 2 to 4 for declaration to the effect that the sale – deed executed by respondent No. 3’s husband in favour of respondent No. 1 Kasturchand was illegal and void and ineffective and the mutation order is also liable to be set aside. During pendency of the case, husband of respondent No. 2 died, and his name was deleted. An application purporting to be under Order 22 Rule 10 CPC was moved by the petitioner alleging himself to be transferee under the sale – deed dated 5.10.91. He also alleged that he was in possession under the sale – deed. The application was contested. Another application was moved on 1.12.94 purporting to be under Order 1 Rule 10 CPC by the petitioner, for being impleaded as a party claiming right on the basis of the aforesaid sale deed dated 5.10.91. That application too was opposed. The application under Order 1 Rule 10 was disposed of on 17.7.95. It was rejected without disposing of the application purporting to be under Order 22 Rule 10 CPC. Later on the application under Order 22 Rule 10 CPC was rejected on 13.8.95. Hence, this petition.

       3. Learned counsel for the respondent raised a preliminary objection that the revision petition is not maintainable as an appeal is provided under Order 43 R.1 (1) CPC. Learned counsel for the revisionist contends that no doubt an appeal is provided under Order 43 Rule 1 (1) CPC against an order under Order 22 Rule 10 CPC, but the revisional jurisdiction is not barred. In support of his contention, he placed reliance on S.S. Khanna v. F.J. Dillon (AIR 1961 SC 497). On merits he urged that the petitioner is a transferee during the pendency of the suit and in order to avoid multiplicity of proceedings, he should have been impleaded as a party. The Court illegally exercised its jurisdiction in rejecting the application and also in disposing of the application under Order 1 Rule 10 CPC earlier than the application under Order 22 Rule 10 CPC. On the other hjand it has been argued that the order rejecting the application under Order 1 Rule 10 CPC has become final as it has not been challenged. The same prayer was made under the garb of application under Order 22 Rule 10 CPC., which is not permissible. Learned counsel also urged that there was an application order against transfer and if a transfer is made after injunction order was passed the transferee cannot be impleaded as a party. In support of his contention he placed reliance on Surjit Singh v. HarbansSingh (1995 (11) MPWN 186), which is a decision of the Apex Court.

       4. I have considered the contentions. Initially, it may be mentioned that the question as to whether revision petition is maintainable or not was considered in the aforesaid authority in case of S.S. Khanna (supra). In that authority the question was considered in para 15, in which the Apex Court ruled:

       "If an appeal lies against the adjudication directly to the High Court, or to another Court from the decision of which an appeal lies to the High Court, it has no power to exercise its revisional jurisdiction, but where the decision itself is not appealable to the High Court directly or indirectly, exercise of the revisional jurisdiction by the High Court would not be deemed to be excluded."

       5. Thus, to my mind, in view of this law, the revisional jurisdiction cannot be said to be excluded for the simple reason that no appeal lies to this Court directly or indirectly from the impugned order.

       6. Now coming to the merits of the revision petition, it may be mentioned that it has to be seen whether any interference is called for or not in this petition. Admittedly, the petitioner moved an application under Order 1 Rule 10 CPC with similar facts for being impleaded as a party. No doubt, it was moved later on than the application purporting to be under Order 22 Rule 10 CPC but the parties had prayed to pass order on the application and no objection was raised before the learned trial Court to the effect that application under Order 22 Rule 10 CPC was pending, application under Order 1 Rule 10 CPC be not disposed of. In this view of the matter, to my mind, it is not open to the revisionist to contend that the court acted illegally in disposing of the application 'under Order 1 Rule 10 CPC earlier than the application under Order 22 Rule 10 CPC. It is sufficient to mention that the facts and the prayer made under both the applications were similar. If the Court did not mention that it was also disposing of the application under Order 22 Rule 10 CPC and disposed of the application under Order 1 Rule 10 CPC, it does not matter. The petitioner did not challenge the order rejecting the application under Order 1 Rule 10 CPC and allowed it to become final. He cannot now turn round and challenge the order passed for his non – impleadment at this stage. Again I may also mention that admittedly the petitioner is a transferee during pendency of the suit and also when an interim injunction was in operation. In view of the latest law laid down by the Apex Court in case of Surjit Singh v. Harbans Singh (supra) is that if transfer is made after injunction is in operation, the transferee cannot be impleaded as a party. Thus, to my mind, the learned Court was perfectly justified in rejecting the application. The authorities relied upon by the learned counsel for the petitioner under these circumstances do not help the learned counsel. The revision petition is accordingly dismissed with costs.