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2019 Supreme(SC) 254

SUPREME COURT OF INDIA
UDAY UMESH LALIT, DINESH MAHESHWARI, JJ.
R. DHANASUNDARI @ R. RAJESWARI – Appellant(s)
Versus
A.N. UMAKANTH AND OTHERS – Respondent(s)
CIVIL APPEAL NO. 7292 OF 2009
Decided on : 06-03-2019

Advocates Appeared:
For the Appellant : Mr. M. A. Chinnasamy, AOR Ms. C.Rubavathi,Adv. Mr. P.Raja Ram,Adv. Mr. V.Senthil Kumar,Adv.
For the Respondent: Mr. Sunil Fernandes, AOR Ms. Nupur Kumar,Adv. Mr. Darpan Sachdeva,Adv. Ms. Priyansha Indra Sharma,Adv. Mr. P. V. Yogeswaran, AOR Mr. Ashish Kumar Upadhyay,Adv. Mr. Y.Lokesh,Adv. Mr. Babul Kumar,Adv. Mrs. D. Bharathi Reddy, AOR.

IMPORTANT POINT
In eventuality of plaintiff withdrawing suit or abandoning his claim, a pro forma defendant who has a substantial question to be decided against co-defendant, is entitled to seek his transposition as plaintiff.

Headnote:Civil Procedure Code, 1908 – Order XXIII Rule 1-A read with Order I Rule 10 – Transposition as plaintiff in suit – Object of Rule 10 of Order I CPC is essentially to bring on record all persons who are parties to dispute relating to subject matter of suit so that dispute may be determined in their presence and multiplicity of proceedings could be avoided – In eventuality of plaintiff withdrawing suit or abandoning his claim, a pro forma defendant who has a substantial question to be decided against co-defendant, is entitled to seek his transposition as plaintiff for determination of such a question against said co-defendant in given suit itself – Powers of Court to grant such a prayer for transposition are very wide and could be exercised for effectual and comprehensive adjudication of all matters in controversy in suit – Basic requirement for exercise of powers under Rule 1-A would be to examine if plaintiff is seeking to withdraw or to abandon his claim under Rule 1 of Order XXIII and defendant seeking transposition is having an interest in subject-matter of suit and thereby, a substantial question to be adjudicated against other defendant – In such a situation, pro forma defendant is to be allowed to continue with same suit as plaintiff, thereby averting likelihood of his right being defeated and also obviating unnecessary multiplicity of proceedings – In given status of parties and subject matter of suit, when plaintiffs entered into an arrangement with defendant Nos. 1 and 2 and sought permission to withdraw under Order XXIII Rule 1 CPC, right of defendant Nos. 3 to 6 to continue with litigation on their claim against defendant Nos. 1 and 2 immediately sprang up and they were entitled to seek transposition as plaintiffs under Order XXIII Rule 1-A CPC – Trial Court had been justified in allowing prayer for transposition and High Court has rightly declined to interfere – Appeal dismissed. (Paras 9, 10, 12 and 13)
       Facts of Case:
       Instant appeal by special leave is directed against judgment and order dated 12.10.2006, as passed in C.R.P. (PD) No. 10 of 2006, whereby High Court of Judicature at Madras has upheld order dated 07.07.2005, as passed in O.S. No. 219 of 2004 by District Munsif, Chengalpattu allowing application filed by defendant Nos. 3 to 6 for transposing them as plaintiffs, after existing plaintiffs sought permission to withdraw suit.
       Findings of Court:
       Even if some question is sought to be raised as regards rights of subsequent purchasers (defendant Nos. 4 to 6), right of the defendant No. 3 (earlier plaintiff No. 5) to prosecute suit as a plaintiff remains rather indisputable in view of his status as one of the legal representatives of original plaintiff. Right of defendant No. 3 (earlier plaintiff No. 5) to challenge sale deed between defendant No. 1 and defendant No. 2 did not get annulled only by his earlier transposition as defendant; and he cannot be considered bound by arrangement between existing plaintiffs and defendant Nos. 1 and 2. In given set of circumstances, Trial Court had been justified in allowing prayer for transposition and High Court has rightly declined to interfere.
       Result : Appeal dismissed.

JUDGMENT

Dinesh Maheshwari. J.

This appeal by special leave is directed against the judgment and order dated 12.10.2006, as passed in C.R.P. (PD) No. 10 of 2006, whereby the High Court of Judicature at Madras has upheld the order dated 07.07.2005, as passed in O.S. No. 219 of 2004 by the District Munsif, Chengalpattu allowing the application filed by defendant Nos. 3 to 6 for transposing them as plaintiffs, after the existing plaintiffs sought permission to withdraw the suit.

2. The prayer of defendant Nos. 3 to 6 to be transposed as plaintiffs under Order XXIII Rule 1-A read with Order I Rule 10 of the Code of Civil Procedure, 1908 ('CPC'), came to be made and allowed in somewhat peculiar set of facts and circumstances, which could be noticed, in brief, as follows:-

(a) The civil suit in question was originally instituted in the Court of the Principal Subordinate Judge, Chengalpattu by A.C. Nataraja Mudaliar (original plaintiff) against A.V. Manoharan (defendant No.1 - respondent No. 1 herein) and R. Dhanasundari @ R. Rajeshwari (defendant No. 2 - appellant herein) for cancellation of the sale deed dated 23.03.1985, which was executed by defendant No. 1 in favour of defendant No.2. This suit was initially registered as O.S. No. 122 of 1989.
(b) The assertions in the plaint had been that the suit schedule property was purchased in the name of a partnership firm M/s South India Engineering Works of which, the plaintiff and the defendant No. 1 were the partners; and that the said firm was dissolved by a deed of dissolution dated 22.05.1971 whereby, the defendant No. 1 A.V. Manoharan was relieved of the assets and liabilities of the firm and the suit schedule property vested with the plaintiff A.C. Nataraja Mudaliar. It was alleged that the defendant No. 1 A.V. Manoharan, despite having relinquished the rights in the suit property, sold the same to the defendant No. 2 under the impugned sale deed dated 23.03.1985.
(c) During pendency of this suit, the original plaintiff A.C. Nataraja Mudaliar expired on 19.05.1988 leaving behind 3 sons and 4 daughters as his legal representatives, who were impleaded as plaintiff Nos. 2 to 8 in the suit. One of the sons of the original plaintiff namely, A. N. Umakanth (plaintiff No. 5-respondent No. 1 herein) was extended power of attorney by his siblings.
(d) The suit was decreed ex pane in the year 1995 but later on, the ex pane decree was set aside and the suit was restored to the original number. However, in the interregnum, the respondent No. 1 A. N. Umakanth, the power of attorney holder of all the legal representatives of the original plaintiff, sold the suit property to three persons, namely Ramasamy, Dhanam Ramasamy and Venkatasubramanian (respondent Nos. 2 to 4 herein) through a registered sale deed dated 04.07.1995. In view of this transaction, upon restoration of the suit, the said purchasers moved an application (IA No. 135 of 2002) for being impleaded as plaintiffs. This application was allowed on 21.06.2002 and thereby, the said purchasers were allowed to join the suit as plaintiffs Nos. 9 to 11.
(e) However, the other plaintiffs (Nos. 2 to 4 and 6 to 8) took exception to the aforesaid transaction of sale by the plaintiff No. 5; they revoked his power of attorney and moved an application (IA No. 468 of 2003) for transposition of the plaintiff No. 5 and his purchasers (plaintiff Nos. 9 to 11) as defendants. This application was allowed on 25.06.2003 and, accordingly, the plaintiff No. 5 and plaintiff Nos. 9 to 11 were transposed as defendants 3 to 6 in this suit.
(f) Thus, at and until the given juncture, the proceedings and developments had been that in the civil suit for cancellation of sale deed executed by the defendant No. 1 in favour of the defendant No. 2, the original sole plaintiff had expired; his legal representatives came on record as plaintiff Nos. 2 to 8 with plaintiff No. 5 being the power of attorney holder of the other plaintiffs; the suit was decreed ex parte and the said at

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2019 Supreme(SC) 254

SUPREME COURT OF INDIAUDAY UMESH LALIT, DINESH MAHESHWARI, JJ.R. DHANASUNDARI @ R. RAJESWARI – Appellant(s) VersusA.N. UMAKANTH AND OTHERS – Respondent(s)CIVIL APPEAL NO. 7292 OF 2009Decided on : 06-03-2019

IMPORTANT POINTIn eventuality of plaintiff withdrawing suit or abandoning his claim, a pro forma defendant who has a substantial question to be decided against co-defendant, is entitled to seek his transposition as plaintiff.

Cases Referred (1)

SUPREME COURT OF INDIA
UDAY UMESH LALIT, DINESH MAHESHWARI, JJ.
R. DHANASUNDARI @ R. RAJESWARI – Appellant(s)
Versus
A.N. UMAKANTH AND OTHERS – Respondent(s)
CIVIL APPEAL NO. 7292 OF 2009
Decided on : 06-03-2019

IMPORTANT POINT
In eventuality of plaintiff withdrawing suit or abandoning his claim, a pro forma defendant who has a substantial question to be decided against co-defendant, is entitled to seek his transposition as plaintiff.