TMI Blog2017 (10) TMI 1650X X X X Extracts X X X X X X X X Extracts X X X X ..... he order allowing the application impleading Respondent No. 3 as assignee (Order XXII Rule 10 Code of Civil Procedure) after 27 years of filing of the suit vitally affects the valuable rights of the Appellant. The order allowing amendment of plaint by impleading Respondent No. 3 as 'Plaintiff No. 3' on the basis of alleged assignment of agreement dated 24.08.1987 decides a vital question which concerns the rights of the parties and hence is a 'judgment' to maintain the Letters Patent Appeal. Allowing of such application after 27 years of filing suit for specific performance would cause serious prejudice to the Appellant-Defendant depriving valuable right of defence available to the Appellant and hence the order of Single Judge allowing the Chamber Summons is a 'judgment' within the meaning of Clause 15 of the Letters Patent Appeal. When the Plaintiff assigns/transfers the suit during the pendency of the suit, the assignee is entitled to be brought on record and continue the suit. Order XXII Rule 10 Code of Civil Procedure enables only continuance of the suit by the leave of the court. It is the duty of the court to decide whether leave to be granted or no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 3 in Suit No. 894 of 1986. 3. The Respondent No. 1 filed suit No. 894 of 1986 against the Appellant for specific performance of the agreement of sale dated 08.06.1979 by which the Appellant is said to have agreed to sell the suit property to Respondent No. 1 and in the alternative directing the Appellant to pay a sum of Rs. 10,75,021.05 with further interest on the sum of Rs. 4,52,778/- at the rate of 18% per annum from the date of the suit till payment or realization. According to the Appellant, the said agreement has been rescinded on 28.11.1984. The Respondent No. 1 is said to have assigned the interest to Respondent No. 2, their sister concern. 4. In the year 2014, Respondent No. 3-Kedia Construction Company Limited filed Chamber Summons No. 187/2014 stating that subsequent to the filing of the suit, with the consent of Respondent No. 2, Plaintiff No. 1/Respondent No. 1 had assigned its interest to Respondent No. 3 for a consideration of Rs. 23,31,000/- by an agreement for sale dated 24.08.1987. The Chamber Summons was filed to implead Respondent No. 3 as Plaintiff No. 3 and praying to amend the suit pursuant to the agreement of sale in its favour. The Appellant oppose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contended that when the suit for specific performance was pending from 1986 and the same was well within the knowledge of Respondents, the amendment made in the year 2014 impleading Respondent No. 3 as Plaintiff No. 3 under the guise of application Under Order XXII Rule 10 Code of Civil Procedure, is a sheer abuse of law. Counsel further submitted that there was a gross delay of 27 years in filing the impleadment application and the High Court glossed over the law and facts and erred in allowing the application without keeping in view an inordinate delay of 27 years in filing the application. 7. Per contra, learned Senior Counsel for the Respondents Mr. Shekhar Naphade submitted that the order allowing the application in Order XXII Rule 10 Code of Civil Procedure is in the nature of an interim order and not finally determined the rights of the parties and hence no Letters Patent Appeal will lie. The learned Senior Counsel further submitted that Respondent No. 3 claims as an assignee of the rights of the Respondent Nos. 1 and 2 and has the right to continue the suit and the order allowing impleading application does not affect the rights of the parties. It was further contended t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .. 114. In the course of the trial, the trial Judge may pass a number of orders whereby some of the various steps to be taken by the parties in prosecution of the suit may be of a routine nature while other orders may cause some inconvenience to one party or the other, e.g., an order refusing an adjournment, an order refusing to summon an additional witness or documents, an order refusing to condone delay in filing documents, after the first date of hearing an order of costs to one of the parties for its default or an order exercising discretion in respect of a procedural matter against one party or the other. Such orders are purely interlocutory and cannot constitute judgments because it will always be open to the aggrieved party to make a grievance of the order passed against the party concerned in the appeal against the final judgment passed by the trial Judge. 115. Thus, in other words every interlocutory order cannot be regarded as a judgment but only those orders would be judgments which decide matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned. Similarly, orders passed by the trial Judge deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w, allowing of such application after 27 years of filing suit for specific performance would cause serious prejudice to the Appellant-Defendant depriving valuable right of defence available to the Appellant and hence the order of Single Judge allowing the Chamber Summons is a 'judgment' within the meaning of Clause 15 of the Letters Patent Appeal. 12. The stand of Respondent No. 3 is that it claims as an assignee of the rights of Respondent Nos. 1 and 2 and that it has the right to continue the suit Under Order XXII Rule 10 Code of Civil Procedure and the provisions of limitation, do not apply to such an application. To appreciate merits of this contention, we may usefully refer to Order XXII Rule 10 Code of Civil Procedure, which reads as under: ORDER XXII: DEATH, MARRIAGE AND INSOLVENCY OF PARTIES .......... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ples which should govern disposal of an application for impleadment are: 41.1. The court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have been joined as Plaintiff or Defendant or whose presence before the court is necessary for effective and complete adjudication of the issues involved in the suit. 41.2. A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the court. 41.3. A proper party is a person whose presence would enable the court to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made. 41.4. If a person is not found to be a proper or necessary party, the court does not have the jurisdiction to order his impleadment against the wishes of the Plaintiff. 41.5. In a suit for specific performance, the court can order impleadment of a purchaser whose conduct is above board, and who files application for being joined as party within reasonable time of his acquirin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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