R. Dhanasundari @ R. Rajeswari vs A.N. Umakanth & Ors.

Code of Civil Procedure, 1908 – Or. I, r.10 – Object of – Discussed.

Dismissing the appeal, the Court

HELD: 1.1 On the facts and in the circumstances of this case, upon the existing plaintiffs seeking permission to withdraw under Order XXIII Rule 1 CPC, the defendant Nos. 3 to 6 have rightly been allowed to be transposed as plaintiffs under Order XXIII Rule 1-A read with Order I Rule 10 CPC and to continue with the suit, as originally filed against the defendant Nos. 1 and

2. The law of procedure relating to the parties to a civil suit is essentially contained in Order I of the Code of Civil Procedure, dealing with various aspects concerning joinder, non-joinder and mis-joinder of parties. Rule 10 of Order I specifically provides for addition, deletion and substitution of parties; and the proposition for transposition of a party from one status to another, by its very nature, inheres in sub-rule (2) of Rule 10 of Order I CPC. On the other hand, the law of procedure in relation to withdrawal and adjustment of suits is contained in Order XXIII of Code of Civil Procedure. As per Rule 1 thereof, a plaintiff may seek permission for withdrawal of suit or abandonment of a part of claim. Rule 1-A thereof deals with an eventuality where the plaintiff withdraws his suit or abandons his claim but a pro forma defendant has a substantial question to be decided against the co-defendant. The object of Rule 10 of Order I CPC is essentially to bring on record all the persons who are parties to the dispute relating to the subject matter of the suit so that the dispute may be determined in their presence and the multiplicity of proceedings could be avoided. [Paras 7-9] [656-F-H; 657-A, D, G, E]

1.3 As per Rule 1-A ibid., in the eventuality of plaintiff withdrawing the suit or abandoning his claim, a pro forma defendant, who has a substantial question to be decided against the co-defendant, is entitled to seek his transposition as plaintiff for determination of such a question against the said co-defendant in the given suit itself. The very nature of the provisions contained in Rule 1-A ibid. leaves nothing to doubt that the powers of the Court to grant such a prayer for transposition are very wide and could be exercised for effectual and comprehensive adjudication of all the matters in controversy in the suit. The basic requirement for exercise of powers under Rule 1-A ibid. would be to examine if the plaintiff is seeking to withdraw or to abandon his claim under Rule 1 of Order XXIII and the defendant seeking transposition is having an interest in the subject-matter of the suit and thereby, a substantial question to be adjudicated against the other defendant. In such a situation, the pro forma defendant is to be allowed to continue with the same suit as plaintiff, thereby averting the likelihood of his right being defeated and also obviating the unnecessary multiplicity of proceedings. The present one is clearly a case answering to all the basics for applicability of Rule 1-A of Order XXIII read with Rule 10 of Order I CPC. The principal cause in the suit is challenge to the sale deed executed by defendant No.

1 in favour of defendant No. 2, with the original plaintiff asserting his ownership over the property in question. In the given status of parties, even if the plaintiff Nos. 5 and 9 to 11 were later on transposed as defendant Nos. 3 to 6, the suit remained essentially against the defendant Nos. 1 and 2, that is, in challenge to the sale deed dated 23.03.1985, as executed by the defendant No. 1 in favour of the defendant No. 2. In regard to this cause, even if plaintiff Nos. 5 and 9 to 11 came to be transposed as defendant Nos.3 to 6, their claim against defendant Nos.1 and 2 did not come to an end; rather, the interest of the existing plaintiffs as also the defendant Nos. 3 to 6 had been one and the same as against the defendant Nos. 1 and

2. In the given status of parties and the subject matter of the suit, when the plaintiffs entered into an arrangement with defendant Nos. 1 and 2 and sought permission to withdraw under Order XXIII Rule 1 CPC, the right of defendant Nos. 3 to 6 to continue with the litigation on their claim against defendant Nos.1 and 2 immediately sprang up and they were, obviously, entitled to seek transposition as plaintiffs under Order XXIII Rule 1-A CPC. It is also noteworthy that even if some question is sought to be raised as regards the rights of the subsequent purchasers (defendant Nos. 4 to 6), the right of the defendant No. 3 (earlier the plaintiff No. 5) to prosecute the suit as a plaintiff remains rather indisputable in view of his status as one of the legal representatives of the original plaintiff. The right of the said defendant No. 3 (earlier the plaintiff No. 5) to challenge the sale deed between defendant No. 1 and defendant No. 2 did not get annulled only by his earlier transposition as the defendant; and he cannot be considered bound by the arrangement between the existing plaintiffs and the defendant Nos. 1 and 2. The Trial Court was justified in allowing the prayer for transposition. The High Court rightly declined to interfere.[Paras 10-13] [658-B-H; 659-A-E]

Anil Kumar Singh v. Shivnath Mishra (1995) 3 SCC

147 : [1994] 5 Suppl. SCR 135 - referred to.