Transposition of a defendant as a plaintiff under CPC requires the original plaintiff to withdraw or abandon the suit, ensuring no multiplicity of proceedings.

ORDER :

PRAYER : Petition filed under Article 227 of the Constitution of India, to call for the records and set aside the fair and executable order dated 23.12.2021 passed in the application in I.A.No.4 of 2021 in O.S.No.518 of 2011 on the file of the Additional District Munsif Court, Tirumangalam.

This Civil Revision Petition is directed against the fair and decretal Order of the learned Additional District Munsif, Thirumangalam dated 23.12.2021 in I.A.No.4 of 2021 in O.S. No.518 of 2011. By the said Order, the learned District Munsif allowed the application filed under Order XXIII Rule 1A read with Section 151 of the Code of Civil Procedure, filed by the first respondent/petitioner/10th defendant to transpose himself as the second plaintiff.

2. The suit was filed by one Annal Packiyam, against 8 defendants in 2011. The case of the plaintiff is that by a series of transactions, the suit properties came to be vested in the plaintiff, she having purchased the same. While so, she was shocked to know that one of the predecessors in title, Neerukathalingam had sold the property in favour of one Panjavarnam Ammal and who had in turn executed documents in favour of the defendants 1, 2 and the father of the defendants 3 to 8. Hence, the suit is for declaration of title of the plaintiff and for consequential permanent injunction restraining the defendants from interfering with the possession of the property.

3. The suit is resisted by the defendants by claiming that the said Neerukathalingam had title in respect of the property and denying the fact that he sold the suit property as alleged in the plaint. Since it was pleaded that there was a further sale in favour of one Majestic Chemicals Limited, the said company was imploded as the 9th defendant in the suit.

4. Pending the suit, the plaintiff sold the suit property in favour of one Ilangovan by a registered sale deed dated 29.07.2019 and accordingly he was impleaded in the suit as the 10th defendant. The fourth defendant died and his legal heirs were also impleaded as defendants 11 to 17.

5. The issues were framed and parties went to trial. After the plaintiff’s side evidence was over and when the defendants were letting in their evidence, at that stage, the present application was filled by the impleaded purchaser, 10th defendant to transpose himself as the plaintiff. It is his contention that since he had purchased the suit property, he got into the shoes of the plaintiff, as such he has to be transposed as the plaintiff.

6. The application was resisted by a counter affidavit. The objections are that the plaintiff is very much contesting the suit and has let in evidence and the plaintiff’s side evidence is also over. Now the application is filed only to derail the trial. Secondly, it will lead to a situation where there will be two plaintiffs represented by two different counsel, leading to an anomalous situation.

7. The Trial Court found that the plaintiff’s entire interest in the property is sold pendente lite and in case the plaintiff withdraws or abandons the claim, the defendants can continue the suit. The subsequent purchaser has to be given an opportunity to prove his title and possession. Therefore, the 10th defendant can be transposed as the plaintiff. Aggrieved by the same, the present revision is filed.

8. Mr.J.Barathan, the learned counsel appearing on behalf of the petitioners/original defendants would contend that the application to transpose can be permitted if only the plaintiff withdraws or abandons the suit. In the absence of the same, when the plaintiff side evidence is over and when the original defendants are now leading evidence, this application ought not to have been entertained. Order XXIII Rule 1-A of CPC categorically imposes the said condition.

9. Mr.N.Mohideen Basha, the learned counsel for the 10th defendant would submit that apart from Order XXIII Rule 1-A of CPC, the Court also has power under Order I Rule 10(2) of CPC. When the original plaintiff has no sub