2023:PHHC:057911

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

CR-4993-2022 (O&M)

Date of Decision: April 24, 2023

Mamta and another

...Petitioners

Versus

Hem Raj Khanna and others

...Respondents

CORAM:

HON'BLE MRS. JUSTICE ARCHANA PURI

Present:

Mr.Ajay Jain, Advocate

for the petitioners.

Mr.Shalender Mohan, Advocate

for respondents No.1 and 2.

****

ARCHANA PURI, J.

Challenge in the present revision petition is to the order dated

11.10.2022 passed by learned Civil Judge (Jr. Divn.), whereby, an

application filed by the petitioners under Order 22 Rule 10 read with

Section 151 CPC, has been dismissed.

The material facts, as culled out from the paperbook are that,

initially, respondents No.1 and 2 (who are plaintiffs before the lower Court)

had filed a suit for seeking relief of separate possession of half share

through partition by metes and bounds, in respect of shop consisting of two

'khans' bearing No.21, Ward No.XV, as detailed in paragraph 1 of judgment,

copy whereof is Annexure P-1.

As evident from the judgment dated 22.05.2018 (Annexure P-

VINEET GULATI

2023.04.26 12:57

I attest to the accuracy and

authenticity of this document

Chandigarh

2023:PHHC:057911

CR-4993-2022

-2-

1), the said suit was dismissed. Respondents No.1 and 2 (plaintiff) had

filed an appeal. Vide order dated 16.12.2021, the judgment and decree

dated 22.05.2018 was set aside and the case was remanded back to the

lower court, with the direction to take additional evidence of the plaintiff,

as permitted by the Court and also to afford an opportunity, to the

defendant, to rebut the additional evidence and learned lower Court was

further directed to record/return its finding on the aspect of partial partition

of the suit property and to decide the suit afresh on merits. Copy of the

said order is Annexure P-2.

However, on 08.04.2022, the petitioners, namely Mamta and

Kiran, had filed an application under Order 22 Rule 10 read with Section

151 CPC, thereby, asserting about respondent No.3-Radha Krishan

(defendant before the Court below) to have sold his share, in the suit

property, in their favour, vide Vasika No.9926 dated 14.01.2020. It was

also pleaded therein, that they purchased the suit property from the

defendant-Radha Krishan, to the extent of his share. The interest has

devolved upon the petitioners and in view of the above, the petitioners

want to continue the said suit, in place of defendant-Radha Krishan. Copy

of the said application is Annexure P-3.

However, in pursuance of the notice issued, respondents-

plaintiffs had filed their reply, inter alia, stating that the application is false

and frivolous and that the alleged sale deed had come into existence,

without the permission of the Court and is hit by Section 52 of the Transfer

of the Property Act, 1882. The petitioners are neither necessary nor proper

parties. However, the Court below, after hearing the parties concerned,

VINEET GULATI

2023.04.26 12:57

I attest to the accuracy and

authenticity of this document

Chandigarh

2023:PHHC:057911

CR-4993-2022

-3-

vide impugned order dated 11.10.2022, dismissed the application for

substitution of the petitioners, in place of defendant-Radha Krishan, in the

suit, while holding in the facts and circumstances, doctrine of lis-pendence

will apply and petitioners would be bound by the order in the suit.

Learned counsel for the parties heard.

In order to adjudicate the controversy involved in the present

petition, the provisions of Order 22 Rule 10 CPC, is reproduced, as herein

given:-

“10. Procedure in case of assignment before final order in

suit.-

(1) In other cases of an assignment, creation or devolution of

any interest during the pendency of a suit, may, by leave of the

Court, be continued by or against the person to or upon whom

such interest has come or devolved.

(2) The attachment of a decree pending an appeal therefrom

shall be deemed to be an inte