SETH RAGHUNATH DASS HARAKCHAND Vs. SETH PURUSHOTHAM DASS

JUDGEMENT

(1.) This is an appeal from the refusal of Mockett, J., to accede to an application by the appellant for leave to be brought on the record as a party plaintiff in C.S. No. 114 of 1926. The application is made pursuant to the provisions of Order 22, Rule 10 (1) of the Civil Procedure Code. The claim in the suit is upon a judgment and decree obtained in the High Court of Hyderabad against the defendant; and the grounds of this application are that the appellant is the assignee of the plaintiff's right against the defendant, in the suit, which it is alleged he obtained, not from the plaintiff but from the plaintiff's assignee, and that his position has been so recognised by the Courts in Hyderabad. It is necessary to consider the history of the litigation in order to appreciate the position correctly and, in so doing, we will assume the accuracy of the facts which have been placed before us. The original debt was incurred in 1877 which incidentally was before the defendant was born. On the 19th December, 1925, the plaintiff obtained a decree in the Courts in Hyderabad against the defendant; and on the 18 July, 1926 the present suit was filed, the claim being based upon the. foreign judgment of Hyderabad. We were informed in the course of the able argument addressed to us by the learned Counsel for the appellant that this suit was ready for trial so long ago as 1927. On the 20 Novmber, 1930 the plaintiffs assigned his decree in Hyderabad to one Raja Dhanraj Girji Raja Narsing Girji who apparently took no steps whatever in the suit in this Court. On the 28 March, 1935, the above named Raja Dhanraj Girji Raja Narsing Girji transferred his assigned decree to the present appellant who now wishes to be placed in the position of the plaintiff in the suit. When the appellant obtained this foreign judgment, he must or should have been fully aware of the above facts and appreciated the very long time which has supervened since this suit was instituted and the totally unnecessary delay which has taken place in bringing it to trial. The relevant wording of Rule 10(1) of Order 22 is: In other cases of an assignment...of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by...the person to or upon whom such interest has come.

(2.) By the use of the word "may" full discretion is given to the Court to allow or disallow an application under this rule, such discretion must of course be exercised judicially. One can visualise delay, even of a year or two, being unavoidable in preparing a case for trial; but when, as in this suit, some nine years have been allowed to pass since (as above stated we have been informed) the suit was ready for trial in 1927, we consider it a matter deserving of the greatest censure - that such a disgraceful state of affairs should be permitted to exist. When a case is ready, it should be prosecuted to trial with the utmost despatch and not allowed to lie on the files of the Court and go entirely to sleep. Such conduct cannot be countenanced nor approved by a Court as it would do if it exercised its discretion in favour of an application such as is now being made. In Lakshan Chunder Dey V/s. Sm. Nikunjamoni Dassi (1923) 27 C.W.N. 755 at 758 in the course of the Judgment it is stated: An applicant who invokes the aid of Rule 10 of Order 22 is not entitled to as a matter of right to an order in his favour, regardless of delay or laches. The Court undoubtedly has a discretion in the matter, which must be judicially exercised.

(3.) In the light of the interminable unexplainable and unnecessary delay and dallying since this suit was commenced 10 years ago and particularly from 1927 when it was then ready for trial we must refuse to exercise our discretion in favour of this application; and consequently the appeal is dismissed with costs.