The main legal point established in the judgment is that transposition of a defendant as a plaintiff can be allowed under Order 1 Rule 10(2) C.P.C. when there is a common interest with the original plaintiff, and Section 21 of the Limitation Act does not apply to cases of transposition of parties.

JUDGMENT :

Dr. Akshaya Kumar Rath, J - Assailing the order dated 6.9.2007 passed by the learned Civil Judge (Sr. Division), Baripada in Civil Suit No. 208 of 2005, defendant Nos. 1 and 2 have filed the instant petition under Article 227 of the Constitution of India. By the said order, the learned trial court allowed the application of the defendant No. 7 filed under Order 1 Rule 10(2) C.P.C. to transpose him as plaintiff.

2. Bereft of unnecessary details, the short fact of this case is that one Smt. Basanti Barik instituted a suit for declaration of right, title and interest, for a declaration that the sale deed dated 17.9.1993 executed by the defendant Nos. 3 to 6 in favour of defendant No. 1 and the sale deed dated 11.6.2004 executed by the defendant No. 1 in favour of defendant No. 2 as null and void in the court of the learned Civil Judge (Sr. Division), Baripada, which is registered as C.S. No. 208 of 2005. In the said suit, sons of the plaintiff have been arrayed as defendants 3 to 7. Pursuant to issuance of notice, defendants 1 and 2 entered appearance and filed a comprehensive written statement denying the assertions made in the plaint. While the matter stood thus, the sole plaintiff died on 9.1.2006. Defendant No. 7, son of the plaintiff, filed an application under Order 1, Rule 10(2) of C.P.C. for transposition as plaintiff. Defendants 1 and 2 filed objection to the same. By order dated 6.9.2007, vide Annexure-3, the learned trial court allowed the application and transposed the defendant No. 7 as plaintiff.

3. Heard Mr. Soumya Mishra on behalf of Mr. S.P. Mishra, learned Senior Advocate for the petitioners and Mr. D. Deo, learned counsel for the opposite party No. 1.

4. Mr. Mishra, learned counsel for the petitioners submitted that defendant No. 7 has neither filed any written statement in support of the claim of the plaintiff, nor challenged the sale transactions within the prescribed period of limitation and as such his right to property has been extinguished. He further submitted that consequent upon the death of the plaintiff, the right accrued in favour of defendant Nos. 1 and 2 cannot be taken away by transposing the defendant No. 7 in place of plaintiff. He further submitted that transposition of defendant No. 7 as plaintiff was far beyond the period of limitation for seeking the relief as claimed by the original plaintiff.

5. Per contra, Mr. Deo, learned counsel for the opposite party No. 1 supported the order dated 6.9.2007 passed by the learned Civil Judge (Sr. Division), Baripada.

6. The provisions of Order 1 Rule 10(2) C.P.C. pertaining to adding or striking off the parties would include transposing of parties as well. In exercise of the power under Order 1 Rule 10(2) C.P.C., the Court may transpose defendant as plaintiff. It is not necessary that defendant must have filed a written statement before he can be allowed to be transposed as a plaintiff.

7. In Piyush Hasmukhlal Desai Vs. International Society for Krishna Consciousness (ISKCON)AIR 2015 Ori 43, a Division Bench of this Court, where Dr. A.K. Rath was a party, held that transposition of defendant as plaintiff can be made only when the defendant has some interest in common with that of the plaintiff. A pro forma defendant can be transposed as plaintiff only when interest and identity are the same between the plaintiff and one or more of the defendants. A person, whose interest is adverse to the plaintiff, cannot be permitted to be transposed as plaintiff. Be it noted that SLP No. 16533 of 2015 filed by the appellant before the apex Court against the aforesaid judgment was dismissed on 16.07.2015.

8. The submission of Mr. Mishra, learned counsel for the petitioners that transposition of defendant No. 7 as plaintiff was far beyond the period of limitation is difficult to fathom. In Mukesh Kumar and Others Vs. Col. Harbans Waraich and Ors, AIR 2000 SC 172 : (2000) 1 CTC 176 : (1999) 8 JT 563 : (2000) 124 PLR 179 : (1999) 6 SCALE 644 : (1999) 9 SCC 380 : (199