A transposed plaintiff cannot change the entire cause of action; a fresh suit must be filed for new claims.

JUDGMENT :

SANJAY KUMAR DWIVEDI, J.

Heard Mr. Manjul Prasad, learned counsel for the petitioner and Mr. Shresth Gautam, learned counsel for the respondents.

2. This petition has been filed under Article 227 of the Constitution of India for quashing the order dated 17.04.2023 passed by learned Civil Judge (Sr. Division) V, Ramgarh in Original Suit no. 37/2016 whereby the learned court has refused to accept the plaint filed by transposed plaintiff who was initially impleaded as defendant no.1.

3. Mr. Manjul Prasad, learned counsel for the petitioner submits that by order dated 29.06.2022 the petitioner who was defendant no.1 was transposed as plaintiff. He further submits that the said order of transposition was challenged by respondent no.1 herein by filing C.M.P. No. 1148 of 2023 which was dismissed by order dated 12.07.2024. He further submits that in view of dismissal of the said C.M.P. transposition of the petitioner is not in dispute. He further submits that the Title Suit No. 37 of 2016 was filed by the plaintiff for right, title and interest. He submits that during pendency of the said suit the plaintiff has left for his heavenly abode. He submits that the petitioner was defendant no.1 he was contesting the suit and in view of that after the death of the plaintiff he was transposed plaintiff. In this background he submits that the petition dated 01.11.2022 was filed for substituting the plaint which was rejected by the trial court on wrong reasons. He further submits that the learned court has failed to appreciate that the petitioner has already transposed plaintiff in view of that the said petition was required to be allowed however, the learned court has rejected the same. He relied in the case of “Veerabhadrappa and another Vs. Smt. Gangamma and Another” reported in AIR 2003 Karnataka 348. By way of relying the said judgment he submits that one transposed plaint can be accepted as has been held in para 15 of the said judgment and in view of that the impugned order is required to be quashed.

4. Per contra, Mr. Shresth Gautam, learned counsel for the respondents submits that there is no illegality in the order of the learned trial court. He submits that so far transposed order is concerned, that has attained finality. He submits that petition has been filed for substituting the entire plaint which is not permissible under the rule and in view of that the learned court has rightly passed the order. He further elaborates his argument by way of submitting that one can amend the plaint however by way of accepting the fresh plaint entire cause of action cannot be allowed to change and in view of that this petition may kindly be dismissed.

5. In view of above submissions of the learned counsel for the parties, it is admitted fact that the Title Suit no. 37 of 2016 was instituted by one Jaswant Singh who has left for his heavenly abode during pendency of the suit. The petitioner was contesting the said suit and he was made defendant no.1. He has already filed written statement. After the death of the original plaintiff the petitioner was allowed to be transposed plaintiff by order dated 29.06.2022. Thereafter the petition dated 01.11.2022 was filed for accepting the new plaint in place of the plaint already filed by Jaswant Singh who has left for his heavenly abode.

6. The learned trial court has held that there is no law to substitute the plaint entirely which appears to be correct one. It is well settled that on cogent ground one can pray for amendment of the plaint however by way of transposed plaintiff the entire cause of action by way of accepting the new plaint cannot be allowed to be changed. If such a situation is there and fresh cause of action is there, the fresh suit is required to be filed. The reference may be to Order 23 Rule 1A which reads as under:

“1A. When transposition of defendants as plaintiffs may be permitted-Where a suit is withdrawn or abandoned by a plaintiff under rule 1 and a defendant applies to be transpo