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IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
S.M. Rizvi, J.
Gh. Rasool Bhat - Appellant
Versus
Gh. Mohd. Puchaoo - Respondent
Civil Revision No. 91/1984
Decided On : 23 May, 1985
ORDER 1 RULE 10 CPC - SUBSTITUTION OF PARTIES - SECTION 69 PARTNERSHIP ACT - SUMMARY
Fact of the Case:
Plaintiff filed a suit for accounts against defendants, alleging joint purchase of land, installation of a brick kiln and bandsaw, and misappropriation of earnings by defendant No. 1. Defendant No. 2 admitted the averments and sought transposition as plaintiff, alleging collusion between the original plaintiff and defendant No. 1. The trial court granted the transposition.
Finding of the Court:
The court found that the original plaintiff and defendant No. 1 were colluding to hush up the claim of defendant No. 2, and that transposition was necessary to avoid multiplicity of suits and for the final adjudication of the dispute. The court also noted that there was no conflict of claims between the original plaintiff and defendant No. 2.
Issues: Whether the transposition of defendant No. 2 as plaintiff was permissible under Order 1 Rule 10 CPC.
Ratio Decidendi: The court held that transposition of parties under Order 1 Rule 10(2) CPC is permissible to avoid multiplicity of suits and for the final adjudication of the dispute, provided that the nature of the suit is not altered and there is no conflict of claims between the parties. The court also held that the absence of the original plaintiff in the suit did not create a valuable right in defendant No. 1, as the suit could not be dismissed in default due to the pending application for transposition.
Final Decision: The court dismissed the revision petition and upheld the trial court's order transposing defendant No. 2 as the plaintiff.
2. The plaintiff instituted a suit for accounts against the defendants on the averments that the parties had purchased a piece of land jointly and installed a brick kiln and a bandsaw over it, in accordance with the terms of the partnership deed According to him the defendants were responsible to run the business and maintain accounts thereof. He alleged that the defendants have not given any cash to plaintiff from the earnings of the business nor deposited any amount in the Bank. He further alleged that the defendant No 1 was taking undue advantage of his close relationship with him by mis-apororpriating the ever increasing income of the business and avoiding to show accounts thereof to him.
3. The defendant No. 2 filed his written statement admitting the averments as made by the plaintiff in his plaint.
4. The defendant No 1 also filed his written statement wherein he stated that the plaintiff or the defendant No. 1 had no right over the suit business The land in dispute belonged to him alone and the partnership in question was never acted upon by the parties, which was executed just to obtain a loan from some Bank and that to could not materialise. According to him he was the sole owner of the brick kiln and the bank saw were in his exclusive possession and the defendants had to right over the said business He further alleged that the suit business was started by him with fats own capital and the defendants bad neither provided any capital to him and nor offered any sort of assistance to him in this behalf.
5. The suit appears to have had a chequerred career since its institution on 20.8.1981. The issues have been settled in the case after two years on 24.9.1983. One of the issues framed to the case related to registration or otherwise of the firm and whether the suit was hit by the provisions of Section 69 of the Partnership Act, and the said issue was to be determined as preliminary one. The plaintiff was directed to produce the requisite certificate of the Registrar of Firms. This order appears to have changed the complexion of the suit leading to disinterestedness of the plaintiff in its prosecution. He sought a couple of opportunities to produce the said certificate and was later on given a final opportunity in this behalf on 29 12.1983 It is on 7.4.1984 that the defendant No. 2 submitted the application for his substitution as the plaintiff in the suit, copy whereof was given to the counsel for the plaintiff and the defendant No. 1. Later on the plaintiff absented himself from appearing in the case alongwith his counsel, presumably to get it dismissed in default. The court however did not do so obviously because the defendant No. 2 had already filed an application for his transposition as plaintiff in the case, inter alia on the following grounds :
That he has the same grievance against the defendant No. 1 as the plaintiff had about his mis-appropriation of funds; that the plaintiff happens to be the brother-in-law of the defendant No. 1 and were hand in glove with each other in order to grab his share in the partnership concern; that the full accounts of the firm were maintained by the defendant No. 1 and he is in control of the business right from 1975 and has been in connivance with the plaintiff misappropriating the earnings of the firm; that his interests in the suit business cannot be saved except by his transposition as plaintiff and that of the plaintiff as the defendant in the case; That without transposition as prayed for the court may not be able to decide and settle the issues involved in the case properly and effectively that the transposition as prayed for will prevent multiplicity of litigation between the parties.
6 The learned trial court after
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