Local amendment to Order 1 Rule 10 empowers courts to transpose defendants as plaintiffs at any stage; Order 23 Rule 1A limited to withdrawal/adjustment of suits, inapplicable otherwise.

JUDGMENT :

Ajay Mohan Goel, J.

By way of this petition, the petitioners have assailed order 21.02.2025 (Annexure P-5), in terms whereof, an application filed by defendants No.4 and 5 therein for being transposed as plaintiffs has been allowed.

2. Brief facts necessary for the adjudication of this petition are that plaintiff, namely Balbir Bindra has filed a suit for declaration that the plaintiff and defendants except defendant No.2 be declared joint owners of the suit property and the alleged Will dated 01.07.2020, registered in the Office of Sub-Registrar is illegal, wrong and void. Other reliefs have also been prayed for in the Civil Suit.

3. The plaintiff has impleaded five defendants in the suit including defendants No.4 and 4, namely, Dinesh Kumar and Poonam. Though, the suit is being contested by other defendants, however, defendants No.4 and 5 have not filed any written statement to the Civil Suit. During the pendency of these proceedings an application was filed by defendants No.4 and 5 for their transposition as plaintiffs on the ground that as they were having common interest as the plaintiff, therefore, they may transposed as plaintiff. The application was not opposed by the plaintiff.

4. In terms of order dated 21.02.2025, the application was allowed by the learned Court below. This order reads as under:-

“Heard and gone through the case file. Defendants No. 4 and 5 have not filed written statement. They filed the present application for transposing them as plaintiffs. The plaintiff has not opposed the application. Though, the defendants No. 1 to 3 have contested the application, but the plaintiff, who is the dominus litis has no objection in transposition of the defendants. Therefore, keeping in view the averments of the application which are supported with an affidavit, the application is hereby allowed in the interest of justice. Application stands disposed of. It be registered and tagged with the main case file.

Matter be now listed for filing amended plaint, to come up on 08.04.2025.”

5. Feeling aggrieved, the present petitioners/ contesting defendants have filed this petition.

6. Learned Counsel for the petitioners argued that the impugned order is per se not sustainable in the eyes of law as the same has been passed by ignoring the provisions of Order 23, Rule 1A of the Civil Procedure Code, which deals with the transposition of defendants as plaintiffs as the application filed by defendants No.4 and 5 was not fulfilling the criteria laid down in Order 23, Rule 1A of the Civil Procedure Code. He further argued that in terms of provisions of Order 1, Rule 10 (2) of the Civil Procedure Code, said transposition was not permissible and thus he prayed that as the impugned order was per se perverse, the same be set aside.

7. On the other hand, learned Counsel for the respondents submitted that there was not infirmity in the order, for the reason that as the application filed by defendants No.4 and 5 was not opposed by the plaintiff and as there was no dispute that the interest of the said defendants was common with the plaintiff, the application was correctly allowed by the learned Trial Court to avoid multiplicity of litigation.

8. When this case was heard on 26.08.2025, the following order was passed:-

“Learned counsel for the respondents has pointed out that an amendment has been carried out by the State of Himachal Pradesh in Order 1 Rule 10 and sub-rule 6 has been added, which reads as under:-

“The Court may, at a