Transposition application under Order 1 Rule 10(2) CPC rejected at belated stage post-written statement and evidence closure due to lack of diligence, inconsistent adversarial stand, and suspected extraneous motives.

JUDGMENT :

Ajay Mohan Goel, J.

By way of this petition, the petitioner has assailed the impugned order dated 21.07.2022 (Annexure P-5), passed by the learned Trial Court, in terms whereof, an application filed under Order 1 Rule 10(2) of the Code of Civil Procedure by the petitioner herein who is defendant No. 3 in the civil suit, for being transposed as a plaintiff, was dismissed.

2. Brief facts necessary for the adjudication of this petition are that the respondent herein plaintiff had filed a suit for declaration to the effect that he is the owner in possession of the suit land, and that Will, dated 18.10.2005 allegedly executed in favour of the defendants and the Gift Deed dated 28.05.2007 in favour of defendant No. 1 were result of fraud, misrepresentation, etc., and was liable to be declared null and void. Consequential relief of permanent injunction has also been prayed for.

3. The present petitioner is defendant No. 3 in the civil suit. In terms of the contents of the plaint, which is on record as Annexure P-1, there are specific allegations against the present petitioner regarding the alleged fraud and misrepresentation said to have been exercised by him along with the other defendants vis-à-vis the execution of the Will.

4. The written statement filed by respondents No. 1 to 3 is placed on record as Annexure P-2, and a perusal of the same demonstrates that the suit is being resisted by the defendants, including the present petitioner.

5. In this backdrop, the petitioner filed the application under Order 1 Rule 10(2) of the CPC before the learned Trial Court, in which it was averred that the petitioner was wrongly arrayed as a defendant, whereas his interest was actually aligned with that of the plaintiff. According to the petitioner, after service of summons upon the parties, he was not properly advised by his counsel that his interest lay with the plaintiff, and when the evidence of the defendants was closed, the petitioner was asked by his counsel to lead evidence, which he refused to do. He thereafter sought advice from another counsel and discovered that the documents alleged as the Will and the Gift Deed were against the interest of the applicant, as the petitioner had not inherited anything on the basis of the alleged false and frivolous Will.

6. It was primarily on this basis that the transposition was sought, with further averments in the application that the suit land was more than 100 Kanals and a false and frivolous Gift Deed had been constructed, thereby jeopardizing the interest of the petitioner.

7. This application, though not opposed by the plaintiff, was opposed by the contesting defendants, i.e., defendants No. 1 and 2. It was mentioned in the reply that defendant No. 3 was one of the beneficiaries along with the other defendants and that the contentions raised in the application were self- contradictory. It was also the stand of the contesting respondents that the petitioner was exercising undue pressure upon them and demanding 20 Kanals of land, and when they refused to do so, this application had been filed.

8. In terms of the impugned order, the application has been rejected by the learned Trial Court by assigning the following reasons:-

“I have heard Ld.counsels for the parties and perused the case record with care.
It is pertinent to mention here that the present suit has been filed in the year 2014 1.e