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Sheo Vishal v. V A.D.J. Etawah & Others - WRIT - C No. 1852 of 1982 [2006] RD-AH 472 (6 January 2006)


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Court no. 31

Civil Misc. Writ Petition No. 1852 of 1982

Sheo Vishal vs. The V Addl. District Judge and ors.


Hon'ble Bharati Sapru, J.

Heard learned counsel for the parties.

This writ petition has been filed against an order dated 4.12.1981 by which the appellate court has dismissed the application filed by the petitioner under Order XXII Rule 10 C.P.C.

The facts of the case are that the suit for specific performance was filed by one Smt. Vimla Devi-respondent no. 2 who claimed to own property in dispute through her mother Gomti Devi. The petitioner on the other hand claims that he had purchased the disputed property by way of a registered sale deed on 17.9.1975 from the said Ram Shanker who was the father of the plaintiff and the husband of late Gomti Devi. In the year 1980 Ram Shanker died. The petitioner therefore being transferee of Ram Shanker filed an application under Order XXII Rule 10 C.P.C. saying that he be impleaded as heirs and legal representatives of Ram Shanker.

The Court below has taken view as said earlier that the application filed under Order XXII Rule 10 and 11 C.P.C. can only be entertained during the pendency of the suit. In the present case, the suit was decreed and an appeal preferred against the judgment passed in the suit was pending and as such it was not open to the petitioner to seek an impleadment at this stage.

Learned counsel for the petitioner has placed before a judgment of the Hon'ble Supreme Court in the case of Amit Kumar Shaw vs. Farida Khatoon, reported in (2005) 11 SCC 403, in which the Hon'ble Supreme Court has explained the provisions of Order XXII Rule 10 and has held that although the transferee cannot be joined as of right but court has discretion to do so and the transferee can be joined as a proper party if his interest in subject matter of suit is substantial and not just peripheral.

The question whether the right of a person would be affected if he has not joined, in this case, if the petitioner being transferee of the disputed land was not allowed to participate in the proceedings before the appellate court, his right would definitely be affected, as the person from whom he had purchased the disputed property was dead.

Having heard learned counsel for the parties and having perused the entire facts and circumstances of the case, I am of the opinion that the impugned order passed by the court below rejecting the application of the petitioner filed under Order XXII Rule 10 C.P.C. deserves to be set aside.

As the matter is very old one and the appeal is pending in many years, it is directed that the appeal be heard and decided expeditiously after making the petitioner as party in the appeal preferably within a period of one year. It is however made clear that the parties to the appeal shall not be permitted by the court below to seek unnecessary adjournments and will cooperate with the Court at all stages.

The writ petition is, accordingly, allowed. The impugned order dated 4.12.1981 is quashed. There will be no order as to costs.

Dated  6.1.06'



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