KRISHNA BEHARI GOEL Vs. RAJ MANGAL PERSAD

JUDGEMENT

(1.) THE applicant challenges the order of the trial Court impleading the opposite parties as plaintiffs along with the original plaintiff.

(2.) THE suit was instituted by Sukhhu against the applicant for an injunction to restrain him from interfering with his possession over certain occupancy tenancy. During the pendency of the suit sukhhu died and Shrimati Surjita and others applied for being brought on the record as his legal representatives. While that application was pending they transferred their interest in the property in dispute to the opposite parties. Thereupon the opposite parties applied for leave of the Court to carry on the suit under Order 22, Rule 10. Their application was opposed by the applicant who contended that the assignment of occupancy rights in their favour by Surjita and others was invalid, that under Order 22, Rule 10 an assignee from the original plaintiff or defendant can be granted permission, but not an assignee from, a legal representative of the original plaintiff and that the right that the plaintiff had claimed was a personal right which did not survive his death. The application of the opposite parties was allowed by the trial Court and the opposite parties have now been added as plaintiffs.

(3.) THE view taken by the trial Court is correct. There is no justification for holding that the provision in Order 22, Rule 10 applies to a devolution, assignment or creation of an interest by the original plaintiff and not by his legal representative. The words "plaintiff" and "defendant" are not used in that provision at all. It simply refers to assignment, creation or devolution of any interest; this means that it applies in the case of every assignment, creation or devolution of an interest, whether by the original parties to the suit or by their legal representatives. There would have been no justification for making any distinction between an assignment, creation or devolution of an interest by the original parties to the suit and an assignment etc. by legal representatives of the original parties. Therefore, it could not have been contemplated by the legislature that the words "an assignment etc. " refer to an assignment by the original parties and not by their legal representatives. Reliance was placed upon --'manindra Chandra Nandi v. Ram Kumar Lal Bhagat', AIR 1922 p. C. 304 (A ). The question whether the provision of Order 22, Rule 10 applies to an assignment etc. by the original parties or also an assignment by their legal representatives did not arise before their Lordships of the Judicial Committee and their Lordships never held that it applies to an assignment by the original parties and not to an assignment by their legal representatives. In the case before their Lordships there was only a lease granted by a defendant and that lease was held to be not an assignment, creation or devolution of any interest within the meaining of Order 22, Rule 10. When there was no assignment etc. in that case the other question, whether an assignee from a legal representative of an original party can apply or not, did not arise. When their Lordships, while explaining the provision, remarked on p. 306 that : "the order contemplates cases of devolution of interest from some original party to the suit, whether plaintiff or defendant, upon some one else", they did not intend to say that it contemplates cases of devolution of interest only from the original parties to the suit and not from their legal representatives. In --'champalal Bansilal v. Mt. Sona Eai', AIR 1946 Nag 164 (B), the above quoted observation of their Lordships was relied upon. In that case the application under Order 22, Rule 10 was made by an assignee from one claiming to be an heir of the deceased plaintiff, but the so-called heir had not applied for substitution of his name in place of that of the deceased plaintiff. It was found by the Courts that the so-called heir was not the heir of the deceased plaintiff and that consequently the applicants were not entitled to be substituted under Order 22, Rule 10. Thus in that case also the question whether an application under Order 22, Rule 10 by an assignee from a legal representative of a deceased party can be made or not did not arise. The application of the so-called assignees would have been dismissed on merits even if it was found that he was entitled to apply under Order 22, Rule 10. He would have failed on merits because there was no devolution of interest in his favour at all. No other case I was referred to in support of the contention. I hold that one claiming to be an assignee from a legal representative of a deceased party is entitled to apply under Order 22, Rule 10.