Transposition of parties in legal proceedings requires shared interest; allegations of fraud can be considered within same proceedings to prevent multiplicity of litigation.

JUDGMENT :

Nidhi Gupta, J.

Present revision petition has been filed by petitioner/plaintiff against the order dated 25.05.2018 (Annexure P5) passed by Ld. Additional District Judge, Hoshiarpur, whereby application filed by respondent No.1 for transposing him as appellant No.4 and to file his Memorandum of Appeal has been allowed.

2. Brief facts of the case are that the petitioner/plaintiff had filed a suit against the present respondents for possession by way of specific performance of the agreement to sell dated 06.12.2007 in respect of land described in the head note of the plaint, and in the alternative suit for recovery of Rs.4 lacs. Vide judgment and decree dated 30.10.2015 Annexure P1 the said suit was decreed in favour of the petitioner/plaintiff; against which respondents No.2 to 4 herein preferred an Appeal against the present petitioner and respondent No.1. During the pendency of this appeal, present respondent No.1/defendant No.2 filed an application dated 16.02.2017 Annexure P3 for transposing him as appellant No.4 in the said appeal and to file his Memorandum of appeal.

3. On notice the petitioner contested the said application by filing reply dated 09.03.2017 Annexure P4. Vide impugned order dated 25.05.2018 said application Annexure P3 has been allowed by the Ld. Court below. Hence, the present revision petition.

4. It is inter alia submitted by the Ld. counsel for the petitioner that whenever any party is to be transposed, two conditions have to be fulfilled i.e. (a) the said party should be an interested party and (b) there should be commonness of interest between the parties.

5. It is next submitted that in view of the allegations of fraud levelled by the newly transposed appellant, issue regarding fraud should have been framed and evidence will be required to be led.

6. It is also submitted that though respondent No.1 is part owner of the suit land yet, he has no common interest with the other appellants. It is stated that this is evident from the totally different pleas and allegations regarding fraud etc., raised by the said respondent No.1-Sarabjit Singh against his brothers/respondents 2 to 4 herein. It is submitted that Ld. Court below should have first decided the question of fraud and decided the issue on merit after allowing the parties to lead evidence. However, Ld. Court has failed to frame such issue.

7. It is very ably and persuasively argued by ld. Counsel for the petitioner that in fact, respondent No.1 should have filed a separate appeal as the grounds of appeal filed by respondents 2 to 4 is altogether different from the claims made by respondent No.1. It is further submitted that in allowing the application of respondent No.1, Ld. Court below has not even considered the question of limitation and has just observed "the question of limitation can be taken into consideration by the Court at the relevant time". It is submitted that therefore, a valuable right of the petitioner has been taken away.

8. In response to a specific query put to the Ld. Counsel by this Court, as to what prejudice would be caused to petitioner by allowing such transposition, Ld. counsel submits that the relief claimed in the appeal Annexure P2 is 'For setting aside the impugned judgment and decree dated 30.10.2013 by accepting the present appeal by dismissing the suit of the plaintiff/respondent' whereas in the application filed by respondent No.1 for transposing him as appellant No.4, the very veracity of the agreement to sell dated 06.12.2007 has been doubted as it has been inter alia pleaded by respondent No.1 that the said agreement does not bear his signatures, and not a single penny was paid to him, and that his signatures on vakalatnama a