BHUPINDER SINGH Vs. PRITAM SINGH

JUDGEMENT

(1.) DISMISSAL of an application under Order 1, Rule 10 of the Code of Civil Procedure moved by Bhupinder Singh and others, petitioners herein, has given rise to the present revision petition,

(2.) PRITAM Singh and another filed a suit for possession and permanent injunction against Assa Singh, Kashmir Singh sons of Wasaba Singh Jarnail Singh son of Ujagar Singh and one Dalip Singh son of Inder Singh. During the pendency of the suit, the petitioners purchased a part of the property in dispute from Dalip Singh through registered sale deed dated October 24, 1991. Having purchased the property, they moved an application dated May 20 1992 for being impleaded as defendants in the said suit. Learned trial Court dismissed the application in view of the provisions of Section 52 of the Transfer of the Property Act by relying upon the judgment of this Court in Gurbux Singh v. Union of India and Ors. , 1982 R. L. R. 193.

(3.) AFTER hearing learned counsel for the parties, I am of the view that this revision petition deserves to succeed as the trial Court acted illegally and with material irregularity in exercise of its jurisdiction. Dalip Singh son of Inder Singh was a party to the aforesaid suit and was arrayed therein as defendant No. 4. During the pendency of the suit, he transferred the property through a registered sale deed in favour of the petitioners. It is after the purchase of the said property the petitioners moved the application for being impleaded as defendants in the suit, they having purchased the property from Dalip Singh. As a matter of fact, the application sheuld have been made under Order 22, Rule 10 of the Code and not under Order 1 Rule 10 Order 22 Rule 10 of the Code provides that in cases assignment creation or devolution of any interest during the pendency of a suit the suit may, be leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved la the present case, the interest of Dalip Singh has devolved upon the petitioners on account of purchase of the property and in view of the provisions of Rule 10 of Order 22 of the Code, they have a right of substitution in place of Dalip Singh and continue proceedings from the stage they made their application. In my view, it is not a case under Order 1 Rule 10 of the Code for impleading of a party as defendant As observed above, the petitioners will represent the interest of Dalip Singh, they having purchased a part of the property from him during the pendency of the suit on the basis of the pleas, if any, already raised by the predecessorin-interest of the petitioners. Gurbux Singh's case, (supra) relied upon by the trial Court has no application to the facts of the present case and in fact, learned counsel for the respondents did not rely on the aforesaid judgment Learned counsel for the respondents/however, placed reliance on Sukhdip Singh v. Arjan Singh Mihan Singh, A. I. R. 1961 Punj. 326 to contend that the order passed by the trial court under Rule 10 of Order 22 of the Code is only a discretionary order and that since the trial Court in the present case did not allow the application of the petitioners for substitution as defendants, this Court should not interfere with the discretion exercised. According to the learned counsel, as assignee is not entitled as a matter of right to continue the proceedings. There can be no quarrel with the proposition as mentioned in the above noticed case, but the facts of the reported case are entirely different. It was a case of compromise and thus, it was held that the assignee would be bound by the compromise effected between the assigner and the opposite party unless he were to be permitted by the Court to reopen the settlement and show that the compromise was a fraud on his right and that the Courts must in exercise of its discretionary powers consider prima facie equities amongst other things. In the present case, as already noticed, the petitioners had purchased a part of property, the subject matter of the suit, from Dalip Singh during the pendency of the suit and his interest was not being represented by anybody, he having been proceeded ex-parte He having sold the property is no longer interested in the suit. The interest of justice requires that the petitioners be substituted in place of Dalip Singh, the former having acquired interest in the property during the pendency of the suit. The rights of the parties have not yet been settled as between the plaintiffs and the assignor. It is thus, in this context, I am of the opinion that it will not only be just but fair as well to permit the petitioners to be substituted as defendants in place of Dalip Singh.