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IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
R.C. Gandhi, J.
Fayaz Ahmad - Appellant
Versus
Shabir Ahmad & Ors. - Respondent
CMP No. 126/2003
Decided On : 30 April, 2004
Transposition - Civil Revision - O.23 R. I-A CPC, Section 141 and 151 CPC - The court discussed the provisions of O.23 R. I-A CPC, Section 141 and 151 CPC and their applicability to the revision proceedings. It also referred to a case law to support the transposition of a party in writ proceedings. The court emphasized the bonafides of the applicant seeking transposition, the plausibility of the applicant's claim, and genuineness of their interest in the litigation before allowing the transposition.
Fact of the Case:
The respondent sought transposition as Revision Petitioner in a civil revision case where the petitioner and respondent were tenants defendants in a suit for eviction. The petitioner had virtually abandoned the proceedings, leading to the need for transposition.
Finding of the Court:
The court found that the petitioner had abandoned the proceedings and that the interest of the petitioner and respondent seeking transposition was common as tenants. It also found that the provisions of O.23 R. I-A CPC, Section 141 and 151 CPC could be applied to the revision proceedings, and allowed the transposition of the respondent as the Revision Petitioner.
Issues: The issues involved the abandonment of proceedings by the petitioner, the common interest of the parties seeking transposition, and the applicability of O.23 R. I-A CPC, Section 141 and 151 CPC to the revision proceedings.
Ratio Decidendi: The court's decision was based on the abandonment of proceedings by the petitioner, the common interest of the parties seeking transposition, and the applicability of O.23 R. I-A CPC, Section 141 and 151 CPC to the revision proceedings.
Final Decision: The court allowed the transposition of the respondent as the Revision Petitioner invoking power under section 141 CPC read with O.I R. 10 CPC.
2. Petitioner and respondent no. 9 are the tenants defendants in the suit pending adjudication before the Civil Court. Landlord-plaintiff has obtained ex-parte decree for eviction of defendants-tenants. In proceedings for setting aside the ex-parte decree, revision petition has been preferred by Fayaz Ahmad one of the defendants in the suit.
3. This application for transposition has been moved on the ground that the petitioner is not taking any interest in prosecuting the petition and has virtually abandoned the proceedings which is evident from the fact that during the pendency of the proceedings, defendant No.1 died on 1.2.2003 and despite notice of the death of the respondent No. 1 as required under O.22 R10-A CPC the petitioner has not taken any steps for bringing on record the legal representatives of the deceased defendant who are: his wife and two sons. Respondent No. 10 has also expired on 14.03.2003 and no steps for bringing on record his Legal Representatives have been taken by the petitioner. Such conduct of petitioner if continues, the cause which is common to the petitioner and respondent No.9 shall not only be frustrated but defeated also.
4. I have heard learned counsel for the parties and perused the record.
5. Mr. Shah, learned counsel for the petitioner respondent No.9 has submitted that the petitioner has virtually abandoned the proceedings. In support of his plea he has drawn the attention of the Court on the interim orders passed in the petition which reveal that the petition was listed on 24.03.2003, Counsel for the revision petitioner sought time to move an application for bringing on record the Legal Representatives of the deceased respondent No. 1. Thereafter the petition was listed on 25.7.2003 but the counsel for the petitioner did not appear. It was again listed on 16.9.2003 and none appeared on behalf of the petitioner. On 30.10.2003 Mr. Tasaduq Hussain Khaja, learned counsel for the petitioner appeared and made a statement that the matter may be treated as not represented by him which means that he withdrew from the proceedings. Thereafter the petition was listed on 11.12.2003,27.02.2004. 10.03.2004 but neither the petitioner nor his counsel appeared. The Revision Petitioner has not appeared. This conduct of the revision petitioner indicates that he is not interested in prosecuting the petition and rather intends to abandon the proceedings. It is not denied that the interest of the petitioner and respondent no.9 seeking transposition is common being tenants.
6. Mr. Z. A. Qureshi, learned counsel for the deceased-respondent No. 1 landlord whose legal Representatives have not been brought on record, has submitted that there is no provision of law to transpose the respondent as petitioner in proceedings of Civil Revision. Apparently there is no such direct provision of law to transpose a respondent as petitioner in revision petition. Mr.Shah, learned counsel has invited the attention of the court on O.23 R. I-A CPC which deals with the transposition of the defendant as plaintiff and reads as:
"When transposition of defendants as plaintiffs may be permitted: - where a suit is withdrawn or abandoned by plaintiff under rule 1, and a defendant applies to be transposed as a plaintiff under rule 10 of Order 1, the court shall in considering such application have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants."
7. This provision of law is not applicable in revision proceedings and being applicable in suits; for the simplicitor reason that the revision is not continuation of the suit. There are other provisions of law contained in the Code of Civil Procedure such as Section 141 and 151 CPC which vest power to the Court to take care of the interest of the parties where there is no expres
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