Sunday, 6 October 2019

Whether court can allow application if it is made under wrong provision of law?

According to us, the application was wrongly filed under
Order I Rule 10 CPC and it should have been filed Order XXII
Rule 10 CPC which reads thus:
“ORDER XXII : DEATH, MARRIAGE AND INSOLVENCY
OF PARTIES
xxx xxx xxx
10. Procedure in case of assignment before final order in
suit.(
1) In other cases 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.
(2) The attachment of a decree pending an appeal
therefrom shall be deemed to be an interest entitling the
person who procured such attachment to the benefit of
subrule
(1).”
8. It is well settled law that mere mentioning of an
incorrect provision is not fatal to the application if the power to
pass such an order is available with the court.

NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10521 OF 2013

PRUTHVIRAJSINH NODHUBHA JADEJA  Vs  JAYESHKUMAR CHHAKADDAS
SHAH 
Deepak Gupta, J.

Dated:October 04, 2019

By means of this appeal, the appellants who are defendants
in the suit, have challenged the order of the High Court dated
26.03.2009 whereby the order of the trial court has been set
aside and the respondent no. 1 herein has been permitted to be
added as plaintiff no. 2 in the suit.

2. One Mafaji Motiji Thakor (for short ‘MMT’), who is the father
and predecessorininterest
of respondent nos. 2(A) to 2(D), was
the owner of the suit land. He had executed a power of attorney
in favour of respondent no. 3, Avnish Raman Lal (for short ‘ARL’).
It is alleged that on 29.01.2005, ARL exercising his power under
the power of attorney, sold the land to Pruthvirajsinh Nodhubha
Jadeja (deceased), predecessorininterest
of the appellants
herein. MMT filed a civil suit (No.89 of 2006) against the
predecessorininterest
of the appellants and ARL herein
challenging this sale. One of the grounds raised was that no
power to sell the property had been vested in favour of ARL in
terms of the power of attorney executed by MMT. It appears that
during the pendency of the suit, a Court Commissioner was
appointed, who reported that MMT continued to be in possession
of the land. ARL in his written statement filed in the suit,
admitted that the power of attorney did not give him any power to
sell the land. He further stated that he had never executed the
sale deed in favour of predecessorininterest
of the appellants.
3. On 23.03.2007, respondent no. 1, Jayeshkumar
Chhakaddas Shah (for short ‘JCS’), purchased the land from

MMT on payment of Rs.10,00,000/.
This sale deed was
registered and, according to JCS, possession was handed over to
him by MMT. Further, according to JCS, MMT had given an
undertaking in the sale deed that there is no proceeding pending
with regard to the suit land. MMT died on 02.06.2007. On
02.07.2007, JCS filed an application under Order I Rule 10, Code
of Civil Procedure, 1908 (for short ‘CPC’) for impleading him as
plaintiff no. 2 before the trial court. In this application it was
alleged that the legal heirs of MMT, respondent nos. 2(A) to 2(D),
were trying to occupy the suit land in collusion with the
appellants herein. On 06.07.2007 i.e. after JCS filed the
application for impleadment, the legal heirs of MMT executed a
registered declaration deed in favour of the appellants confirming
the sale deed dated 29.01.2005. On 19.07.2007, the legal heirs
of MMT, who had been by then brought on record in the civil suit
filed a memo/miscellaneous application, referred to as ‘Pursis’ in
the orders of the courts below, to unconditionally withdraw the
Civil Suit No.89 of 2006.
4. The trial court dismissed the application filed by JCS for
impleadment holding that he was not a necessary or proper party

and that fresh cause of action arose in his favour and he could
file a separate suit. JCS thereafter filed a petition under Article
227 of the Constitution before the High Court, which was allowed
by the High Court mainly on the ground that even if the legal
heirs of MMT wanted to withdraw from the suit, they could do so
but the rights of JCS, would be vitally affected. Therefore, JCS
was entitled to be impleaded as a party in the suit.
5. Shri D.N. Ray, learned counsel for the appellants, submits
that in a case like this the substitution could have been ordered
only in terms of Order XXII Rule 10 CPC. He further submits
that the plaintiff cannot be stopped from withdrawing the plaint
nor can any party force the plaintiff to add another plaintiff with
him. It is also urged that in case JCS is permitted to be added as
plaintiff no. 2, there will be an inter se clash of interest between
plaintiffs themselves and, therefore, the trial court was right in
holding that the plaintiff should file a separate suit to assert his
rights. On the other hand, Mr. Huzefa Ahmadi, learned senior
counsel appearing for the respondents, submits that though it is
true that it would be Order XXII Rule 10 CPC, which is
applicable, the substitution must be allowed and the plaintiff,

who has purchased the land from MMT, has a right to be
substituted in his place. He further submits that there is no
clash between the case of his client and that set up by the
original plaintiff MMT. The dispute between the two sides has
occurred because of the subsequent actions of the legal heirs of
MMT who have colluded with the defendantappellants.
6. MMT allegedly sold the land to the appellants through his
power of attorney on 29.01.2005. Both MMT and his power of
attorney denied this fact and, in fact, urged that the power of
attorney did not give the right to sell the property. Thereafter,
MMT sold the land to JCS. Shri Ahmadi urges that in terms of
the amendment made to Section 52 of the Transfer of Property
Act, 1882 in the State of Maharashtra, as applicable in the State
of Gujarat, every claim for lis pendens has to be registered. He
urges that MMT had not registered the lis pendens and further,
in the sale deed, undertook that there are no legal proceedings
pending with regard to the suit land. Therefore, JCS is the
purchaser for bona fide consideration.

7. According to us, the application was wrongly filed under
Order I Rule 10 CPC and it should have been filed Order XXII
Rule 10 CPC which reads thus:
“ORDER XXII : DEATH, MARRIAGE AND INSOLVENCY
OF PARTIES
xxx xxx xxx
10. Procedure in case of assignment before final order in
suit.(
1) In other cases 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.
(2) The attachment of a decree pending an appeal
therefrom shall be deemed to be an interest entitling the
person who procured such attachment to the benefit of
subrule
(1).”
8. It is well settled law that mere mentioning of an
incorrect provision is not fatal to the application if the power to
pass such an order is available with the court.
9. MMT had assigned his rights and interest in the land in
favour of JCS. Therefore, JCS as an assignee of the rights of the
original plaintiff, had a right to be impleaded as a plaintiff in
place of MMT.

10. The next question is what is the effect of the legal heirs of
MMT withdrawing the suit. As noted by us above, JCS filed an
application for being joined as plaintiff no. 2 in the suit on
02.07.2007. Subsequently, a settlement was arrived at between
respondent nos. 2(A) to 2(D) and the appellants on 06.07.2007
and only thereafter on 19.07.2007, the legal heirs of the original
plaintiff filed an application for unconditional withdrawal of the
suit.
11. The trial court was seized of both the applications together.
The trial court should have, in our opinion, not dismissed the
application filed by JCS. We may note that the so called
settlement agreement clearly shows that respondent nos. 2(A) to
2(D) had not received any amount from the appellants. There
was no transfer of interest in favour of the appellants by this
document. All that the respondent nos. 2(A) to 2(D) said was that
they stood by the sale deed executed by their father through the
power of attorney in favour of the appellants. On the other hand,
JCS claimed that MMT had sold the land for Rs.10,00,000/,
payment of which was made by cheque. It is thus obvious that
JCS had a vital interest in the suit and had a right to continue

the suit. We are prima facie of the view that JCS need not even
challenge the so called settlement because that settlement does
not, in any way, create any title, right or interest in the suit
parties. Therefore, we hold that JCS had a vital interest in the
suit. The issue whether MMT had authorised respondent no. 3 to
sell the land and whether respondent no. 3 had actually sold the
land, can only be decided in this suit and not in any fresh suit
filed by JCS. We are, therefore, clearly of the view that JCS is
entitled to continue the suit despite respondent nos. 2(A) to 2(D)
having compromised the matter and withdrawn from the suit.
Their withdrawal can have no impact on the rights of JCS.
12. In view of the above discussion, we dismiss the appeal.
Interim order dated 06.07.2009 stands vacated. Pending
application(s), if any, stand(s) disposed of.
………………………………..J.
(Deepak Gupta)
…………………………………J.
(Aniruddha Bose)
New Delhi
October 04, 2019

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