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2013 Supreme(Mad) 123
MADURAI BENCH OF MADRAS HIGH COURT
G. RAJASURIA, J.
P. Samsingh
Versus
P. Balasundari Ammal & Others
C.R.P.(PD) (MD) Nos. 2688, 2689 of 2012 & M.P. (MD) No. 1 of 2012
Decided On: 07-01-2013
Advocate Appeared:
For the Petitioner:M.P. Senthil, Advocate.
For the Respondents:R7, Anand C. Rajesh, Advocate.
In a suit for partition, the plaintiff can be transposed as a defendant, and vice versa, if the circumstances warrant it.
Headnote:
Transposition - Civil Procedure - CPC - [Order 1, Rule 10(2)] - The court allowed the transposition of the second plaintiff as defendant No.4 in the suit and permitted him to file a written statement. The dismissal of the application for amending the plaint to delete the second item of the suit property was upheld.
Fact of the Case:
The second plaintiff sought to be transposed as one of the defendants in a suit for partition, claiming exclusive right over a specific property. The lower court dismissed the application for transposition and the application for amending the plaint to delete the property.
Finding of the Court:
The court allowed the transposition of the second plaintiff as defendant No.4 in the suit and permitted him to file a written statement. The dismissal of the application for amending the plaint to delete the second item of the suit property was upheld.
Issues: 1. Whether the prayer of the plaintiff for transposing himself as one of the defendants, in the facts and circumstances of the case, is sustainable? 2. Whether the application for getting the schedule of properties amended for deleting the second item of the suit property was also sustainable?
Ratio Decidendi: The court held that in a suit for partition, the plaintiff is the defendant and vice versa. It allowed the transposition of the second plaintiff as defendant No.4 in the suit, citing the legal adage that no one should be retained in a partnership against his will. The court also upheld the dismissal of the application for amending the plaint.
Final Decision: The Civil Revision Petitions were disposed of accordingly, and the connected miscellaneous petition was closed. The lower court was directed to ensure that the suit itself would be disposed of within six months from the date of receipt of the order.
1. The nutshell facts absolutely necessary for the disposal of these two Civil Revision Petitions would run thus:
The revision petitioner in both these Civil Revision Petitions happened to be the Plaintiff No.2 in the suit which was filed by as many as eight plaintiffs, as against the defendant, seeking the reliefs to pass judgment and decree in favour of them as under:-
(a) For partition by metes and bounds of plaintiffs' 7/10 shares in properties, i.e. 1/10 share to each of plaintiffs 1 to 3 and 6 to 8 and 1/10 share to plaintiffs 5 and 6 more fully described in the schedule hereunder and deliver the separate possession of their respective 1/10th shares of plaintiffs 1 to 3 and 6 to 8 and 1/10 share of plaintiffs 4 and 5 in the suit properties;
(b) To direct the second defendant to may mesne profit from 01.02.2008 to 31.01.2011 at Rs.2,40,000/- in respect of Item No.2 of the plaint schedule property situated at Door No.92/48, Devarpuram Road, Thoothukudi;
(c) To award cost of this suit and
(d) And pass such other or further reliefs that this Honourable Court may deem fit and proper in circumstances of the case and thus render justice.
2. The matter has been pending for about a year and a half. While so, the second plaintiff filed an I.A. in I.A.No.27 of 2012 for getting himself transposed as one of the defendants in view of his contention that in a previous litigation, his right over the second item of the suit properties herein was declared by the Court that it is his exclusive property which he got it by family arrangement effected by his deceased father. But that application has been dismissed as against which the present C.R.P. (MD)No.2688 of 2012 was filed. The Lower Court while dismissing the application for transposition, observed that the second plaintiff could file an application for amendment for deleting the second item from the suit schedule. Accordingly, the same second plaintiff filed one another application in I.A.No.60 of 2012 for amending the plaint for getting it deleted, but that was also dismissed. Being aggrieved by and dissatisfied with the dismissal of this application, the present one other C.R.P.(MD)No.2689 of 2012 has been filed.
3. The learned counsel for the revision petitioner would submit that his client, viz. the second plaintiff is not interested in participating in the Proceedings, as one of the plaintiffs along with the remaining seven plaintiffs for the reason already found set out supra and in such a case, he cannot be compelled to be the plaintiff and his request for he being transposed as one of the defendants might be considered in this matter.
4. Whereas, the learned counsel for the remaining plaintiffs would vehemently oppose these revisions on the main ground that having taken a very specific stand, the second plaintiff along with other plaintiffs, he cannot now turn turtle and have a volte face and try to claim exclusive right over the second item under some oral arrangement, and such pleas are totally antithetical to the settled principles of law. Nowhere in CPC it is contemplated, for the transposition of the plaintiff as defendant and in such a case, the dismissal of both the applications by the Lower Court warrants no interference.
5. The points for consideration are:
(1) Whether the prayer of the plaintiff for transposing himself as one of the defendants, in the facts and circumstances of the case, is sustainable?
(2) Whether the application for getting the schedule of properties amended for deleting the second item of the suit property was also sustainable?
6. Both these points are taken together for discussion as they are interlinked and interwoven with each other.
7. The learned counsel for the revision petitioner would cite the following judgments:
(1) Bijoyo Kumar Pattanaik v. Basanta Kumar Patnaik, reported in AIR 2000 SUPREME COURT 3587; and
(2) Kannuperumal v. Suseela, reported in 2005(4) CTC 11.
8. A mere running of the eye over those precedents would di
