Case Note & Summary
The matter arose from a civil revision application filed under Section 115 of the Code of Civil Procedure, 1908 before the High Court of Judicature at Bombay, challenging an order dated 27.03.2023 passed by the District Judge-3, Kolhapur, which granted leave to third-party respondents to file an appeal against a decree for specific performance. The applicants were the original plaintiffs in Special Civil Suit No. 361 of 2000, filed in 2000 seeking specific performance of an agreement dated 12.09.1994 in respect of Plot No. 14 in respondent No.5 society. During the pendency of the suit, respondent Nos. 6 to 8, who were transferees pendente lite, claimed leasehold rights in the suit property under an alleged lease deed dated 08.03.2004 and sought impleadment under Order I Rule 10 CPC. The trial court rejected their impleadment application on 18.11.2017, and the High Court dismissed their writ petition against that rejection on 18.07.2019. The suit was ultimately decreed on 15.02.2023, directing respondent Nos. 2 to 4 to execute a sale deed in favour of the applicants. Thereafter, respondent Nos. 6 to 8 sought leave from the appellate court to file a first appeal, which was allowed by the impugned order, leading to the present revision. The court framed two primary legal questions: whether rejection of the impleadment application created a bar to granting leave to appeal, and whether leave to appeal could be granted without notice to the applicants. The applicants argued that the impugned order was passed without notice and hearing, violating natural justice and Sections 141 and 142 CPC; that the rejection of impleadment had attained finality and operated as res judicata or constructive res judicata; and that the respondents had suppressed material facts. The respondents countered that rejection of an Order I Rule 10 application is not per se a bar to leave to appeal; that no notice is required at the leave stage as it is a matter between the court and the applicant; and that they were directly and prejudicially affected by the decree due to their leasehold and possessory rights. They also submitted that all necessary documents, including prior orders, were annexed to the leave application. The court relied heavily on the Supreme Court decision in H. Anjanappa & Ors. v. A. Prabhakar & Ors., which held that rejection of an impleadment application under Order I Rule 10 CPC is per se not a ground to reject leave to appeal; the appellate court must examine whether the transferee pendente lite is aggrieved or prejudicially affected and whether the decree would operate res judicata. The court found that the specific performance decree directly affected title and that the respondents claimed possessory rights, thereby satisfying the test. On the notice issue, the court followed the Gujarat High Court and Punjab and Haryana High Court view that issuing notice and hearing the other side at the leave stage would amount to trying the appeal twice over, which is not necessary. The court also found no suppression of facts because the prior orders were part of the record before the appellate court. Accordingly, the court dismissed the revision application, dismissed the pending interim application, and ordered no costs, while keeping the merits of the appeal open for the appellate court.
Headnote
A) Civil Procedure - Leave to Appeal by Transferee Pendente Lite - Rejection of Impleadment Not a Bar - Code of Civil Procedure, 1908, Section 115, Order I Rule 10 - The appellate court granted leave to third-party transferees pendente lite to appeal against a decree for specific performance despite rejection of their earlier impleadment application. The court held that rejection of an application under Order I Rule 10 CPC is per se not a ground to reject leave to appeal; the appellate court must examine whether the transferee pendente lite is aggrieved or prejudicially affected and whether the decree would operate res judicata. Held that leave was rightly granted because the transferees claimed leasehold and possessory rights in the suit property. (Paras 8-12, 14) B) Civil Procedure - Notice to Opposite Party at Leave Stage - Notice Not Necessary - Code of Civil Procedure, 1908, Sections 141, 142, 92 - The applicants argued that the impugned order was passed without notice and hearing, violating natural justice. The court followed the Gujarat High Court and Punjab & Haryana High Court view that issuing notice and hearing the other side at the stage of leave to file suit or appeal would amount to trying the suit or appeal twice over and is not necessary. Held that leave to appeal could be granted without notice to the applicants; all parties will be heard at the time of hearing the appeal. (Paras 5, 6, 13) C) Civil Procedure - Effect of Previous Rejection of Impleadment - Res Judicata Not Bar - Code of Civil Procedure, 1908, Order I Rule 10 - The applicants contended that the confirmed rejection of impleadment operated as res judicata or constructive res judicata to bar leave to appeal. The court held that rejection of impleadment does not per se create a bar; the appellate court must independently assess whether the decree prejudicially affects the transferees pendente lite. Held that because the specific performance decree directly affected title and possessory rights, the necessary test was passed and leave to appeal was maintainable. (Paras 8-10, 12, 14) D) Civil Procedure - Suppression of Facts - No Suppression When Relevant Orders Annexed - Code of Civil Procedure, 1908, Section 115 - The applicants alleged that respondent Nos. 6 to 8 suppressed the rejection of impleadment and writ petition dismissal. The court found that the list of documents filed with the leave application included both orders at Sr. Nos. 15 and 16, and the appellate judge had gone through the list; hence there was no suppression. Held that the impugned order did not suffer from suppression of material facts. (Paras 4, 6, 14-15) E) Civil Procedure - Revisional Jurisdiction Under Section 115 CPC - Limited Interference - Code of Civil Procedure, 1908, Section 115 - The court held that in limited revisional jurisdiction, no reason existed to interfere with the appellate court's grant of leave to appeal. Held that the revision application is dismissed, pending interim application dismissed, no costs, and merits kept open. (Paras 15-16)
Issue of Consideration
Whether rejection of an impleadment application under Order I Rule 10 CPC created a bar or sufficient ground for not granting leave to file appeal, and whether leave to file appeal could have been granted without notice to the applicants.
Final Decision
The Civil Revision Application No. 287 of 2023 was dismissed. The pending Interim Application No. 12641 of 2023 was also dismissed. No order as to costs. Rival contentions of the parties on merits at the time of hearing of the appeal were kept open.
Law Points
- Legal points not extracted
- Rejection of impleadment application under Order I Rule 10 CPC is not per se a bar to leave to appeal
- appellate court must examine whether transferee pendente lite is prejudicially affected by decree
- decree if allowed to stand may operate res judicata
- notice to opposite side not necessary at leave stage
- hearing other side at leave stage amounts to trying appeal twice over
- revisional jurisdiction limited
