NASEEM DURRANI Vs. MOHD YOUSUF HAMDANI

JUDGEMENT

(1.) THE dispute in this case relates to a plot of land situated at Goni Khan, Srinagar. The plaintiff has asked for vacant possession of the plot after demolition of the building standing over it. The suit was originally brought against Mohammad Abdullah Bhat. During the pendency of the suit, Mohammad Abdullah Bhat transferred the property in favour of one Rehman Gojri. Thereupon, Rehman Gojri, was impleaded as a party defendant. Subsequently Rehman Gojri, in his turn, transferred the property to one, Naseem Durrani The plaintiff made an application praying that Naseem Durrani be substituted as sole defendant in place of Abdullah Bhat and Rehman Gojri. By its order dated 14 -3 -1978, the trial court allowed the application. Thereafter the defendant moved an application for permission to file a fresh written statement. The lower court by its order dated 16 -7 -1979, rejected the application. Hence this revision.

(2.) ORDER 22 Rule 10 of the Code of Civil procedure, provides as under ; (1) In other cases of an 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.  This rule enables the court to allow the substitution of the plaintiff or the defendant, as the case may be, where, owing to an assignment, creation, or devolution, the interest in the property forming the subject matter of the suit passes from the plaintiff or the defendant, as the case may be, to to some other person during the pendency of the suit and the assignment, creation, or devolution is such as is not provided for in the preceding rules. Such cases of assignment creation or devolution would bring within their fold cases of transfer intervivos. The effect of the substitution is not to convert the suit into a new suit, irrespective of the fact whether the substitution is done in the court of first instance or during the course of proceedings in appeal. On the other hand the old suit is carried on at the instance of the new plaintiff or against the new defendant, as the case may be and he is bound by all the proceedings upto the stage when the substitution is made. The transferee cannot raise any new ground of claim or defence which is not open to his transferor. In the circumstances the defendant was not entitled to file a fresh written statement and the lower court was justified in repelling the claim.

(3.) FOR a contrary view, learned counsel for the petitioner relied upon Order 8 rule 8 C. P. 0. That rule provides, that any ground of defence which has arisen after the institution of the suit or the presentation of a written statement claiming a set -off may be raised by the defendant or plaintiff, as the case may be, in his written statement. This rule has no bearing in the present case. The defendant has no where claimed in the application that a ground to defence has arisen after the institution of the suit or the presentation of a written statement which entitles him to claim a set -off. On the other hand, his prayer, in substance is that he should be allowed to file a fresh written statement in supersession of the written statement filed by his predecessor -in -title. Consequently this rule has no application. The argument is misconceived.