C. WRIGHT NEVILLE Vs. E. H. FRESER

JUDGEMENT

(1.) RESPONDENT 1, Mr. Fraser instituted a suit against Mrs. Ivy May Wright Neville, wife of C. Wright Neville of Jubbul-pore, for possession of a bungalow, No. 192, in Napier Town, Jubbulpore, with the compound and outhouses as shown in the map filed with the plaint on the ground that he was the owner thereof. The suit was contested by defendant 1 (respondent

(2.) ). Defendant 2 was joined as a party to the suit as he was in possession of a part of the property. A decree was passed against the defendants in respect of the portions OPQBSTUVWX as they were held to be portions of bungalow No. 192. Respondent 2 was further ordered to vacate the outhouses EPGHIJKLMN as shown in the map filed with the plaint. The plaintiff's claim with respect to the portion marked ABOD was dismissed. This suit was filed in May 1939, and it was decreed on 30th January 1940. During the pendency of this suit, the defendant Mrs. Neville executed a deed of gift with respect to her property, viz., bungalow No. 192 in-eluding the site ABCD, in favour of her husband Mr. C. Wright Neville. The donee or assignee Mr. Neville did not apply to be substituted as a defendant in the suit as the suit was being defended by his wife. 2. Against the decree that was passed the 9 plaintiff Mr. Fraser filed an appeal on 29th March 1940. It appears that the husband and wife, i.e., Mr. and Mrs. Neville, had fallen out by this time. Mr. Neville therefore filed an application in the appellate Court on 19th April 1940, presumably under Order 22, Rule 10, Civil P.C, for being substituted as a respondent in the place of his wife stating that his wife had executed a gift deed in his favour on 1st December 1939 and that she had left no interest in defending the appeal, that as divorce proceedings were pending before the Court between the applicant and his wife it was very likely that his wife would make no effort to h defend the dceree passed in her favour as she had no right left in the subject-matter of the suit, and that therefore it was necessary in the interests of justice that the applicant (Mr. Neville) should be made a party to the suit. The plaintiff made a statement in reply on 2nd September 1940 stating that the transfer was denied and that the application to be made a party was not tenable in view of the fact that Mr. Neville did not apply to be made a party in the lower Court. The assignment was denied, and it was stated that it was taken under threat and undue influence. Before this, the wife of Mr. Neville, who was shown as a respondent in the appeal pending before the District Judge made a statement before the is Court on 20th July 1940 admitting the claim of Mr. Praser. She stated that the original suit was contested by her under the influence and instructions of her husband, and that her husband had obtained a deed of gift referred to by him in his application at the point of a revolver. She thus denied the gift and claimed that she had every right to admit the claim of the plaintiff, which she did by her statement and stated that the claim be decreed in plaintiff's favour. The lower appellate Court before whom the appeal and this application came up for decision dismissed the application of Mr. Neville to be made a party to the case by its order dated 12th September 1940; and, on the next day, on the admission made by respondent 2 it decreed the plaintiff's appellant's claim in appeal. Against the order, dated 12th September 1940, Mr. Neville has filed this Misc. Appeal No. 258 of 1940. He has also filed a Second Appeal No. 587 of 1940 against the decree passed by the Court on 13th September 1940. Both the appeals were heard together, and this order will govern both of them.

(3.) THOUGH the lower appellate Court refers to the above two cases as cases facts whereof are similar to the facts of the present case it has not given effect to them by allowing the application as was done in those cases. This is a case in which there was no unexplained delay in making the application: on the contrary the explanation given by the appellant, who was the applicant in the lower Court, for being made a party is reasonable and such as would have at once made any Court think that in the circumstances of the case there was no delay in making the application and that there was every reason for not filing the application when the suit was pending in the trial Court. An assignee pendente lite is not bound to file an application during the pendency of the suit if his interest is protected. It is only when he finds that his interest is in jeopardy and not likely to be protected by the 3 assignor that it is necessary for him to apply for leave to continue the suit by or against him. In Alagar Raja v. Narayana Raja A.I.R. 1938 Mad. 757 it was held that the term suit in Order 22, Rule 10, includes an appeal and second appeal following on decree and the clause 'the suit may, by leave of the Court, be continued' in Order. 22, Rule 10, means also that the appeal and second appeal arising on the decree in the suit may be continued by or against the person who has acquired the interest. Order 22, Rule 10(2), lends support to this view. An applicant who invokes the aid of Order 22, Rule 10, Civil P.C., is not as a matter of right entitled to an order in his favour regardless of the delay or laches, and there can be no doubt that the Court has been given a discretion in the matter; but the discretion has to be judicially exercised, and an application which will avoid multiplicity of proceedings and injustice should be allowed rather than dismissed. In the present case I have already indicated that during the pendency of this suit in the trial Court the husband and wife, appear to have been of one mind and there was thus no necessity of making an application by the assignee for being placed on record when his interest was duly protected by the wife who was on record. But at the stage of appeal, when he found on account of the divorce proceedings that were pending between him and his wife that his wife was not likely to protect his interest but that on the contrary she was likely to affect his interest by admitting the claim of the adversary which apprehension proved to be true in the case inasmuch as we have op a later date a statement made by the wife admitting the claim--he applied. That was the right time for him to apply., unless there was anything in law which prevented the application being considered at that stage.