Authored By : Das Gupta, Das Gupta

Das Gupta, J.

1. The Appellant was Defendant No. 4 in partition-suit,being Title Suit No. 4 of 1938, in the Court of the Second AdditionalSubordinate Judge of Alipore. A preliminary decree having been passed in thatsuit, a commissioner we appointed, but, before the final decree was passed, anapplication was filed by the Respondent No. 1, Rai Sahib Upendra Nath Ghosh,stating that he had purchased from this Appellant by registered kabala hisundivided share of the properties which were the subject-matter of thepartition in the suit, along with other properties and praying that the name ofDefendant No. be struck off from the cause-title and the name of the petitionRai Sahib Upendra Nath Ghosh be substituted in his place (sic) that the plaintbe amended accordingly and the petition granted leave to prosecute the suit.This application was opposed by the present Appellant, whose main contentionwas that the alleged conveyance was not an out-and-out sale, but a mortgage anda transaction which was in substance a loan, there being a condition andagreement that, in case the Appellant paid back the amount with 15 per cent,interest within three years, the said loan would be satisfied. In spite of manyadjournments granted at the instance of this Appellant, the Appellant was,however, absent when this application for substitution came up finally forhearing. The matter was taken up ex parte for hearing. On consideration of theevidence, the court decided that there had been an assignment in favour of theRespondent No. 1, as alleged by him and ordered that substitution be made asprayed for and that the plaint be amended. The present appeal is directedagainst this order of the Subordinate Judge allowing substitution.

2. Two points have been taken by Mr. Sen on behalf of theAppellant. First, he contends that a further opportunity should have been givento his client to establish his case that there was actually no assignment ofhis interest in favour of the Respondent No. 1. His second and main contention,however, is that, in any case, when the case of assignment, as sought to bemade by the Respondent No. 1, was strenuously challenged by the Appellant, theproper order in this case which should have been passed by the learned courtbelow was one of bringing the Respondent No. 1 on the record as a party inaddition to the Appellant and not one of substitution in place of the Appellantafter striking out the latters name.

3. Order XXII, Rule 10 of the Code of Civil Procedure, whichprovides for the bringing oil record of parties on devolution of interest onassignment during the pendency of a suit runs thus:

In other cases of an assignment, creation or devolution ofany interest during he 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 ordevolved.

4. As the rule stands it merely provides for the suit beingcontinued by or against the person on whom an interest has devolved or to whoman assignment has been made. It does not itself make any provision whether anorder should be made for continuance of such a suit by or against such a personin addition to the person already on the record or in substitution for him.There is here a change of language from that used in the earlier Code, where itwas stated in Section 372 as follows:

In other cases of assignment, creation or devolution of anyinterest pending he suit, the suit may, with the leave of the court, giveneither with the consent of all parties or after service of notice in writingupon them and hearing their objections, if any, be continued by or against theperson to whom such interest has come either in addition to or in substitutionfor the person from whom it has passed, as the case may require.

5. This alteration of language was the subject-matter ofconsideration by the Privy Council in the case of Manindra Chandra Nandi v. RamLal Bhagat (1922) I.L.R. 1 Pat. 581 : L.R. 49 IndAp 220. At first sight itmight appear, as is indicated in the comment of Sir Dinshaw Molla in hisedition of the Code of Civil Procedure, that the Privy Council thought that theresult of the deletion of the words "in "addition to" was thatthe proper order to be made in such cases was only for substitution. It isabundantly clear, however, from their Lordships judgment that they were nor inthat case considering at all the question as regards the form of the order tobe made, namely, whether the continuance should be in addition to or insubstitution for the person already on the record. What they were consideringin that case was whether, when there has not been a total devolution ofinterest, a party could be added. The deletion of the words "in additionto" was obviously of considerable importance in that connection and it wasin this connection that their Lordships remarked that the words "inaddition to" in the earlier Code had disappeared. There is nothing in thisjudgment to justify a conclusion that in their Lordships opinion the result ofthe deletion of the words "in addition to" was that only substitutioncould be made. It is important to notice in this connection that not only thewords "in addition to" have been deleted but the words "insubstitution for" have also been deleted. If it was the intention of thelegislature that parties on whom interest has devolved could only besubstituted, there was no need for deletion of the words "in substitutionfor".

6. The result of the consideration of the language in thesection, in my opinion, is that the Code leaves it entirely to the judicialdiscretion of the court concerned to determine whether the continuance of thesuit by or against the person on whom interest has devolved should be by way ofaddition to the party already on the record or in substitution for him. Thereare many cases, for example, the case of a suit for enforcement of a mortgage,where it is clearly necessary that the continuance should be by way of additionand not by way of substitution, as otherwise the personal remedy will not beavailable against the assignor. There may be many other cases, where it wouldbe against the interest of justice to continue the suit against the person onwhom the interest has devolved in addition to the person from whom the interesthas devolved. Therefore, the court, when considering an application under OrderXXII, Rule 10 has in each case to decide, after having come to a decision thatthere has been devolution of interest, whether the order of continuance shouldbe by way of addition or in substitution for the person whose interest hasdevolved.

7. It is, therefore, necessary to consider whether thecircumstances of the present case justify the contention of Mr. Sen that theproper order should have been one of addition of the Respondent No. 1 to thecase and not of substitution in place of the Appellant. It is important to notice,in the first place, that in this case there is no dispute about the genuinenessof the document or about the passing of the consideration. It is not anywheresaid that the document is a fictitious deed by which no interest was intendedto be transferred. On the contrary the case of the Appellant in his petition ofobjection clearly was that there was a real transaction and that thetransaction, though ostensibly a sale, was really a mortgage with a, conditionthat if payment was made by certain time the said loan would be satisfied. Onthe very words used by the Appellant in his petition of objection, his defenceto the case of assignment made by the Respondent No. 1 would be hit by theprovisions of Section 58(c) of the Transfer of Property Act and the documentwould operate as a sale-deed even if there was such a condition which was notincluded in the document.

8. What is perhaps even more striking in this case is thatin the very sale-deed which is on the record and the genuineness of which, as alreadysaid, has not been challenged by the Appellant, there is a definite clause bywhich the present Appellant authorised the Respondent No. 1 to be substitutedin the partition-suit. The clause runs thus:

You by the strength of this deed having substituted yourname in my place in the said two partition suits and the suits which are filedby the mortgagees against me and pending the Land Acquisition proceedings willbe entitled to conduct the same. If I am required to give any evidence or toprove any document or render any other help then I will do such works withoutany objection and I will remain bound to do so.

9. It seems to me that this clear stipulation in the deedthat the Respondent No. 1 will be substituted in the Appellants place in thepartition-suit and that after such substitution the Appellant will render theRespondent No. 1 every assistance, is by itself almost a conclusivecircumstance in support of the order actually made by the learned SubordinateJudge of substitution of the assignee in place of the assignor, namely, theAppellant.

10. One other circumstance, which, in my opinion, must haveweighed with the learned Subordinate Judge in making the order of substitutionin place of an order of addition was the conduct of the present Appellant inhis court. The application for substitution was filed on November 30, 1944. Itwas taken up for hearing on May 27, 1947. The greater part of this delayappears, from the order-sheet which is in the paper-book, to have been due tothe conduct of the present Appellant. In spite of all the time taken, however,he did not appear to contest this application on the day on which it wasfinally taken up, namely, on May 27, 1947. It was, in my opinion, not at allunreasonable for the Subordinate Judge to take the view that the objectionraised by the Defendant No. 4 was not meant to be pressed seriously and that infact Defendant No. 4 did not intend to dispute the truth and the fullness ofthe assignment.

11. In my view, these circumstances fully justify the orderactually made by the learned Subordinate Judge for substitution of theRespondent No. 1 in place of the Appellant after striking out his name from thecause title.

12. Mr. Sen did not seem to seriously press his othercontention that his client should be given a further opportunity to prove hiscase that there was no real sale. Quite apart from the fact, as already said,that in the petition of objection no case was put forward that the transactionwas fictitious, but the case was one of an ostensible sale, but a real mortgagewith a condition that the sale will be void on certain events, the fact remainsthat the Appellant took more than two years time to get ready to contest thisapplication for substitution and the story of assignment; but when the matterfinally did come up for hearing he did not choose to appear to contest or to gointo the witness box or to adduce any evidence. He had more than sufficientopportunity for putting his case and did not avail himself of that opportunity.There is absolutely no justification, in my opinion, for remanding the case togive him further opportunity to adduce evidence.

13. My conclusion, therefore, is that the order passed bythe learned Subordinate Judge is right and that the appeal should be dismissedwith costs--hearing fee being assessed at three gold mohurs.

Das Gupta, J.

14. I agree.

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Rabindra Chandra Sethvs. Upendra Nath Ghosh(08.11.1949 - CALHC)