TEKAIT AJANT SINGH Vs. SUNDAR MALL

JUDGEMENT

(1.) This appeal is directed against two orders, the first made apparently tinder Rule 10 of Order XXII of the Civil Procedure Code of 1908, and Rule 10, Sub-rule 2 of Order I, and the second made upon an application by the plaintiff for re-consideration of this Order. It appears that on the 27th August 1908, Takait Ajant Singh instituted a suit against one F.F. Christian for a declaration that the purchase of the right of redemption by the defendant had been made by him oat of the consideration money covered by a deed of conditional sale for the benefit of the plaintiff as his trustee and that the transaction had accrued to the benefit of the plaintiff alone. On the 26th September 1910, one Sunder Mall applied to the Court and stated that he had, on the 22nd June 1910, purchased from Tekait Ajant Singh and his son, Thakur Dal Narain Singh, the subject matter of the litigation. He prayed accordingly that he himself might be substituted in place of the original plaintiff, and that the plaintiff and his son, Thakur Dal Narain Singh, might be added as proforma defendants. He further prayed that a copy of the petition might be served on the parties concerned and an order made after they had been apprized of the application. The Subordinate Judge, however, forthwith made an order that the purchaser Sundar Mall be made a plaintiff in place of the original plaintiff, Takait Ajant Singh and that the latter, as also Thakur Dal Narain Siagh, ba made proforma defendants. On the 21st November 1910, the original plaintiff took exception to this order and prayed for its cancellation as it had been made without notice to him. The Court, thereupon, held that as the order had been made, it could not be recalled. The Subordinate Judge further held that inasmuch as the title of Sundar Mall as assignee was challenged, the proper procedure for the parties to follow was to have recourse to a regular suit: and that during the pendency of such a suit, if instituted, the trial of the action before the Court might be stayed. We are invited to consider the propriety of these two orders. In our opinion, there is no room for controversy that the orders in question have been erroneously and improperly made.

(2.) Rule 10 of Order XXII provides that in cases, (other than those mentioned in the preceding rules), of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved. The Subordinate Judge has correctly stated that this rule replaces Section 372 of the Code of 1882, and, from the circumstance that certain words, which found a place in Section 372 but have not been re-produced in Rule 10 of Order XXII, he has drawn the inference that not only may an order for substitution be made ex parte, bit that once such an order has been made ex parte, it cannot be recalled, even upon objection of partie3 interested. Section 372 provided that an order for substitution could be made with the leave of the Court given either with the consent of all parties or after service of notice in writing upon them and hearing their objections, if any. These words do not appear in Rule 10 of Order XXII of the Code of 1908. In our opinion, their absence does not justify the Inference drawn by the Subordinate Judge. It is an elementary rule, of universal application and founded upon the plainest principles of justice, that a judicial order which may possibly affect or prejudice any party, cannot be finally made unless he has been afforded an opportunity to be heard. Begg s case 11 Rep. 3; Re Hammersmith Rent-Charge 19 L.J. Ex. 66 : 4 Ex. 87 : 14 Jur. 917 : 7 D. & L. 41; Reg. v. Sadlers Co. 10 H.L.C. 404 : 9 L.T. 60 : 11 W.R. 1004 : 32 L.J.Q.B. 337 : 38 L.T. 233; Smith v. Queen (1878) 3 App. Cas. 614 (624) : 47 L.J.P.C. 51 : 38 L.T. 233; Balabai v. Ganesh Shankar 27 B. 162 at p. 183 : 4 Bom. L.R. 980. The order may be made by consent of parties. It may be made after notice has been served upon all persons interested. It may be made ex parte, but in this event, it may be challenged by parties interested. The Subordinate Judge was wholly in error when he imagined that he had no authority to re call the order made by him ex parte. All orders of this character, made ex parte, are subject to the implication that they may be revoked at the instance of any party prejudiced thereby, and the Court has inherent power to give such directions as the justice of the case may require. Bibi Tasliman v. Harihar Mahto 32 C. 253; Girwar Lal v. Lakshmi Narain 26 A. 329 : A.W.N. (1904). In fact, this is the procedure followed in England under the rules of the Supreme Court, Order XVII, Rules 4, 5, 6 and 7, which correspond to Rule 10 of Order XXII of our Code. There an application of this character is made ex parte and an order is obtained as a matter of course. The order is next served upon all the parties concerned, and, within the period prescribed, they are allowed to take exception to the order and to have it discharged if adequate grounds are made out. The result is that in England an order of this character is not treated as conclusive against parties upon whom no notice has been served, till they had been afforded an opportunity to make their representation and to satisfy the Court that the order ought not to have been made. In so far, therefore, as the assignee has been substituted in place of the original plaintiff, the order cannot be supported. In so far as the son has been added as a party defendant, the order must be taken to have been made under Order I, Rule 10, Sub-rule 1 of the Code. The son subsequently appeared and stated that he had no objection to be brought on the record as a defendant. But it is obvious that whether he ought to be allowed to be brought on the record as a defendant and cannot be decided till the original plaintiff and defendant have both been heard. Besides, it is well settled that when a person has been substituted in place of the original plaintiff, he is in the exact position of the person whom he represents. Chorlton v. Dickie 13 Ch. D. 160 : 49 L.J. ch. 40 : 41 L.T. 467 : 28 W.R. 228; Johnson v English 55 L.T. 55 : 55 L.J. Ch. 910 : 35 W.R. 29; Cockshott v. London General Cab Co. 47 L.J. Ch. 126 : 26 W.R.. 31. Here, the assignee, in so far as he, claims to be the assignee of the plaintiff represents the interest originally vested in the assignor; but in so far as he claims to represent the son of the plaintiff, he seeks a relief not included in the plaint as initially framed. Whether he should, at this stage be allowed to enlarge the scope of the suit in his character as assignee not of the original Plaintiff but of a stranger to the suit a matter which intimately concerns the defendant; and consequently an order of this description cannot be made till the defendant has been heard. We are, therefore, of opinion that the order in its entirety is bad and must be set aside. 2. We observe that the order has been made upon an application which is not only not supported by any affidavit but is not even verified. The Subordinate Judge ought to have made ex parte an order of this description, specially when the applicant himself prayed that the order might be made after notice to the parties concerned the result of the order of the Subordinate Judge has been that proceedings have been tied up for more than a year: but if his view prevailed, the trial of the suit might be postponed indefinitely, and the defendant kept in suspense pending the investigation of the dispute between the original plaintiff and the person who claims as his assignee. The difficulty might have been avoided if notice of the application had been served on the parties concerned and the assignee had been added as a co-plaintiff under Rule 10 of Order I of the Code.

(3.) The result, therefore, is that this appeal is allowed, the order, of the Court below set aside and the case remanded to that Court in order that the application of Sundar Mall, dated the 26th September 1910, may be considered in the presence of all the parties interested. We make no order as to the costs of this appear as neither of the parties appears to be responsible for the erroneous orders made by the Subordinate Judge.