Pre-Suit Assignment No Ground to Add Assignee as Co-Plaintiff Under Order I Rule 10: Bombay High Court

The original plaintiff sued the petitioners, the landowners, for specific performance of a development agreement of 15 December 2006 and a supplementary agreement of 22 August 2007, and challenged their termination notice of 17 April 2009 (paras 2, 4, 13). It had earlier assigned its rights to respondent no. 2 by a registered deed of 27 July 2007, and it was not its case that the defendants were told (paras 4, 11, 13). On 15 March 2014 the trial court allowed respondent no. 2's application at Exhibit 137 under Order I Rule 10 to be added as co-plaintiff, while rejecting the plaintiff's own amendment application (paras 1, 3). The original defendants challenged that order (para 1).

The trial court had not addressed the scope of Order I Rule 10 where the assignment admittedly preceded the suit (para 13). The rule allows a plaintiff to be added or substituted where the suit was filed in the wrong name through a bona fide mistake, and none was pleaded; so the assignment "cannot be a ground to add the party as a co-plaintiff by relying upon Order I Rule 10, as the assignment is prior to the date of filing of the suit" (para 14). Assignments pendente lite fall under Order XXII Rule 10, which did not arise (para 15). The decisions cited for the third party concerned rival claims or assignments during the suit and did not apply (paras 16-17). Impleadment would defeat the defendants' plea that the plaintiff, having divested its rights, could not maintain the suit (para 17). The trial court erred in holding that the third party had purchased the litigation, as the assignment preceded the suit (para 18). Noting that the third party, said to be the plaintiff's sister concern, shared its advocate in the High Court, the Court held the application was filed only to defeat the defence (paras 11, 19).