2020 Supreme(Del) 669

IN THE HIGH COURT OF DELHI AT NEW DELHI
V. Kameswar Rao, J.
Manjeet Singh Kohli - Appellant
Versus
Mirajuddin & Anr. - Respondent
Civil Suit (Os) No. 872 of 2010, 1505 of 2012; Interlocutory Application No. 18072 of 2019, 422 of 2020, 18061 of 2019, 427 of 2020
Decided On : 11-06-2020

1. An application for transposition of defendants as plaintiffs under Order 23 Rule 1A of the CPC is maintainable only when the plaintiff withdraws or abandons the suit. 2. The right of a defendant to challenge a sale deed between the plaintiff and another defendant does not get annulled by his earlier transposition as a defendant, and he cannot be considered bound by an arrangement between the existing plaintiffs and the defendant Nos. 1 and 2.

Headnote:

COMPROMISE - Compromise arrived at between the parties in the suit for specific performance of agreement to sell - Application for recording of compromise - Maintainability - Order 23 Rule 1A of the CPC - Transposition of defendants as plaintiffs - Maintainability - Order 23 Rule 3 CPC - Withdrawal of suit - Maintainability - Suit for specific performance of agreement to sell - Compromise arrived at between the parties - Application for recording of compromise - Maintainability - Order 23 Rule 3 CPC - Withdrawal of suit - Maintainability.

Fact of the Case:

Suit for specific performance of agreement to sell - Compromise arrived at between the parties - Application for recording of compromise - Maintainability - Order 23 Rule 1A of the CPC - Transposition of defendants as plaintiffs - Maintainability - Order 23 Rule 3 CPC - Withdrawal of suit - Maintainability - Suit for specific performance of agreement to sell - Compromise arrived at between the parties - Application for recording of compromise - Maintainability - Order 23 Rule 3 CPC - Withdrawal of suit - Maintainability.

Finding of the Court:

1. Application for transposition of defendants as plaintiffs under Order 23 Rule 1A of the CPC is maintainable only when the plaintiff withdraws or abandons the suit. 2. In the instant case, the plaintiff in CS(OS) 872/2010 is not withdrawing or abandoning the suit, hence the application for transposition in CS(OS) 872/2010 is not maintainable. 3. In CS(OS) 1505/2012, the plaintiff is seeking withdrawal/abandonment of the entire claim, however, the said suit has been filed for specific performance of the agreement to sell dated March 29, 2008 and compromise deed dated October 29, 2010, with which Harmeet Singh Vohra or his legal heirs have no concern. Hence, no right can be said to have sprung up in their favor. 4. Even if no compromise had taken place and applications under Order 23 Rule 3 have not been filed by the plaintiff (Manjeet Singh Kohli) and I.P. Estates, still the matter would have been heard and decided on merit as per the issues framed; which do not include, determination of right of Harmeet Singh Vohra or his legal heirs based on the MOU dated August 03, 2004.

Issues: 1. Whether the application for transposition of defendants as plaintiffs under Order 23 Rule 1A of the CPC is maintainable? 2. Whether the application for withdrawal of suit under Order 23 Rule 3 CPC is maintainable?

Ratio Decidendi: 1. Order 23 Rule 1A of the CPC deals with the issue of transposition. A perusal of Order XXXIII Rule 1-A reveal that an application for transposition can be filed in two contingencies; firstly when the plaintiff withdraws the suit or secondly the plaintiff abandons the suit. In other words, there is no question of transposition in the eventuality, the suit is neither withdrawn nor abandoned. 2. The right of the 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. In the given set of circumstances, the Trial Court had been justified in allowing the prayer for transposition and the High Court has rightly declined to interfere.

Final Decision: 1. IA 18072/2019 in CS(OS) 872/2010 and I.A. 18061/2019 in CS(OS) 1505/2012 are allowed and a consent decree for specific performance of agreement dated June 7, 2004 is passed. The suit CS(OS) 872/2010 is decreed. The suit being CS(OS) 1505/2012 is dismissed as withdrawn. 2. I.As. 422/2019 in CS(OS) 872/2010 and 427/2019 in CS(OS) 1505/2012 are dismissed.