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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
B.S. BHANUMATHI, J.
Kari Nookanna , S/o.. late Nookanna (Died) – Appellant
Versus
Kari Adibabu, S/o, Nookanna – Respondent
Civil Revision Petition No.1668 of 2022
Decided on : 18-08-2023
Transposition - Counter Claim - Order 23 Rule 1A, Order 1 Rule 10, Order 22 Rule 3, Order 6 Rule 17 r/w Section 151 CPC and Rule 28 of Civil Rules of Practice - The court discussed the transposition of respondents in the counter claim as claimants after the death of the sole counter claimant. The legal framework applied included provisions related to transposition, abatement of proceedings on death of a party, and the rights of legal representatives.
Fact of the Case:
The petitioners sought to be transposed as claimants in a counter claim after the death of the sole counter claimant. The trial court dismissed the petition stating that the right to sue survives on the surviving family members and the issues framed based on the counter claim will be answered in the suit itself.
Finding of the Court:
The court found that the transposition of the petitioners as claimants in the counter claim was legal and necessary, and the observations of the trial court for dismissing the petition were unsustainable.
Issues: The main issue was whether the petitioners could be permitted to be transposed as claimants in the counter claim after the death of the sole counter claimant.
Ratio Decidendi: The court held that the legal representatives of the deceased counter claimant should be transposed as claimants in the counter claim, as there was no conflict of interest and the counter claim had its own existence as a separate proceeding.
Final Decision: The revision petition was allowed, setting aside the trial court's order, and directing the trial court to dispose of the matter within a month.
ORDER :
Transposition of some of the respondents in the counter claim who are the plaintiffs in the main suit for partition, on the death of the sole counter claimant/1st defendant has come up for consideration in this revision petition.
2. This revision petition is filed under Article 227 of the Constitution of India against the order dated 22.04.2022 in I.A.No.521 of 2021 in (counter claim) O.S.No.323 of 2011 on the file of the Court of II Additional District Judge, Visakhapatnam filed under Order 23 Rule 1A, Order 1 Rule 10, Order 22, Rule 3 and Order 6 Rule 17 r/w Section 151 CPC and Rule 28 of Civil Rules of Practice to permit respondents no.1 to 4 in the claim petition i.e. the petitioners no.2 to 5 herein to amend the claim petition being the legal heirs of their father the original claim petitioner/D-1 in suit for transposing them as claimants 2 to 5 as their father died on 03.04.2021 pending the adjudication of the suit and the counter claim and further to permit the petitioners to carry out the consequential following amendments:
(B) The claimant has to be shown as claimant number
“1)” and we the plaintiffs 1 to 4 have to be shown as claimants 2 to 5 in short cause title and long cause title.
(C) In claim petition paragraph III and in cause of action paragraph it is to be amended that
“The “1st claimant” in the place of claimant wherever it occurs.
“Claimants 2 to 5” in the place of respondents 1 to 4 “Respondents 1 to 6 in the place of respondents 5 to 10.
“the claimants 2, 4 & 5 “ in the place of respondents 1, 3 & 4.
“Claimants 2 to 5 and 1st respondent” in the place of respondents 1 to 5.
“Respondents 2 & 3” in the place of respondents 6 & 7
“Respondents 4 to 6” in the place of respondents 8 to 10
“1st respondent” in the place of 5th respondent
“Respondents 2 to 6” in the place of respondents 6 to 10
“Respondents 4 & 5” in the place of respondents 8 & 9
(d) In the prayer paragraph in the place of claimant it is to be stated “claimants” and in the place of my it is to be stated as “our” and in the prayer (a) in the place of claimant it is to be stated as 1st claimant and in the place of 5th respondent it is to be stated as “1st respondent” and in prayer (b) in the place of claimant it is to be stated as 1st claimant and in the place of 5th respondent it is to be stated as “1st respondent” and in the place of respondents 6 & 7 it is to be stated as “respondents 2 & 3” and in the prayer (c) in the place of 6 & 7 respondents it is to be stated as respondents 2 and 3 and in the place of respondents 8 to 10 it is to be stated as “4 to 6” and in prayer (e) and (f) in the place of respondents 6 to 10 it is to be substituted as “2 to 6” as otherwise they will be put to serious loss and hardship.”
3. The 1st petitioner is the 1st defendant in the suit filed for partition by the petitioners 2 to 5. They are the plaintiffs no.1 to 4. The respondents no.1 to 3 herein are D-2 to D-4. The respondents no.4 to 6 are D-5 to D-7.
4. In the original suit in O.S.No.323 of 2011 filed for partition, D-1 filed a counter claim seeking the following reliefs:
b) For cancellation of GPA cum sale agreement dated 15.12.2006 executed by the claimant and the 5th respondent in favour of the respondents 6 & 7
c) For consequential relief of cancellation of subsequent documents executed by the respondents 6 & 7 in favour of the respondents 8 to 10 in respect of the plaint schedule properties;
d) For consequential relief of recovery of possession of the plaint schedule properties.
e) For mandatory injunction directing the respondents 6 to 10 to remove the unauthorized constructions including the boundary wall around the item Nos.2 and 3 of the plaint schedule properties and if the respondents 6 to 10 failed to do so, the Hon’ble Court may be ple
The legal representatives of a deceased counter claimant can be transposed as claimants in the counter claim, and the right to sue survives on the surviving family members.
The main legal point established in the judgment is that transposition of a defendant as a plaintiff is permissible only if their interest is identical to that of the plaintiff and they have a substa....
The main legal point established is that legal representatives are entitled to implead themselves and continue a suit under Order XXII Rule 9 C.P.C, and that rules and procedures should serve the cau....
In partition suits, the principle of transposition allows for the substitution of legal heirs even if some parties have died, provided the title is not in dispute, and a decree passed against decease....
A defendant cannot file a counterclaim against a co-defendant under the CPC, as the provisions only allow counterclaims against the plaintiff.
A counterclaim in a partition suit must be against the plaintiff; failing to notify co-defendants constitutes a violation of natural justice, rendering any ex parte decree unsustainable.
Counter claims in partition suits must be directed against the plaintiff; co-defendants cannot initiate claims solely against each other without notice, as all parties have interchangeable roles.
In a partition suit, unilateral withdrawal by a plaintiff is not permitted if it adversely affects defendants' rights; defendants can assert claims by transposing themselves as plaintiffs.
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