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1995 JLJ 338
U.L. Bhat, C.J.
Sulemanji Sanibhai (M/s.) and others v. Abde Ali and others
C.R. No. 182 of 1993; Decided on 27.3.1995.
(2) Civil P.C., 1908 -- O.23 R.1A and O.1 R.10 -- parameters of R. 1A of O. 23 are prescribed in the rule itself -- consideration of prayer for transposition -- applicant should have a substantial question of law against any defendant.
The parameters of Rule 1A of Order 23 are prescribed in the rule itself. In considering the prayer of any defendant for transposition as a plaintiff under Order 1 Rule 10 where the suit is withdrawn or abandoned by the plaintiff, the Court shall have "due regard to the question as to whether the applicant has a substantial question of law as against any other defendant." This provision leads to two consequences; namely, (1) regard must be had to the question whether the applicant had a substantial question to be decided as against any other defendant which is a positive aspect and (2) whether the applicant had a substantial question to be decided as against the plaintiff is a negative aspect. [Para 8
(3) Civil P.C., 1908 -- O.1 R. 10 and O.23 R. 1A -- proforma defendant -- when can be transposed as plaintiff.
A proforma defendant can be transposed as a plaintiff when the plaintiff seeks to get out of his position as a plaintiff. That is because the suit in a manner of speaking, is brought by plaintiff not only for his benefit but also for the benefit of proforma defendant whose interest is common with that of the plaintiff. In such a case, the plaintiff in withdrawing of abandoning his case should not be allowed to affect adversely those defendants who have interest common with that of the plaintiff. [Para 8
(4) Civil P.C., 1908 -- O. 1 R. 10 and 23 R. 1A -- incorporation of R. 1-A of O. 23 -- is explicit what was implicit in O. 1 R. 10 -- it is clarificatory in nature. [Para 8
(5) Civil P.C., 1908 -- O. 23 R. 1A -- party not a proforma defendant or a defendant whose interest is not common to the plaintiff -- cannot be transposed as plaintiff to continue the case against erstwhile plaintiff. AIR 1989 Pat 2 dissented from. AIR 1983 Guj. 194 and AIR 1978 P & H 216 discussed. [Paras 9 & 11
¼1½ flfoy izfØ;k lafgrk] 1908 && vk- 23 fu- 1 rFkk vk- 1 fu- 10 && vk- 23 fu- 1d esa mica/k && ls vk- 1 fu- 10 ds mica/k dh vuqiwfrZ gksrh gSA ¿ iSjk 5À ¼2½ flfoy izfØ;k lafgrk] 1908 && vk- 23 fu- 1d rFkk vk- 1 fu- 10 && vk- 23 fu- 1d ds izkpy Lo;a fu;e esa fofgr gS && i{kkarj.k dh izkFkZuk ij fopkj && vkosnd dk lkjHkwr fof/k iz‘u fdlh Hkh izfroknh ds fo#) gksuk pkfg,A vkns‘k 23 ds fu;e 1d ds izpy Lo;a fuxe esa fofgr gSA tc oknh }kjk okil fy;k x;k vFkok ifjR;Dr dj fn;k x;k gks rc vkns‘k 1 fu;e 10 ds v/khu oknh ds :i esa i{kkarj.k ds fy, fdlh Hkh izfroknh dh izkFkZuk ij fopkj djrs le; U;k;ky; }kjk **bl iz‘u ij lE;d~ /;ku fn;k tk,xk fd D;k vU; fdlh Hkh izfroknh ds fo#) vkosnd dk lkjHkwr fof/k iz‘u gS \** bl mica/k ds nks ifj.kke gS( uker% ¼1½ bl iz‘u ;g vo‘; /;ku fn;k tkuk pkfg, fd D;k vkosnd dk lkjHkwr iz‘u vU; fdlh Hkh izfroknh ds fo#) fofuf‘pr fd;k tkuk Fkk] tks jpukRed igyw gS] rFkk ¼2½ ;g udkjkRed igyw gS fd D;k vkosnd dk lkjHkwr iz‘u oknh ds fo#) fofuf‘pr fd;k tkus okyk FkkA ¿ iSjk 8À ¼3½ flfoy izfØ;k lafgrk] 1908 && vk- 1 fu- 10 rFkk vk- 23 fu- 1d && izksQkekZ izfroknh && dc oknh ds :i esa i{kkrfjr fd;k tk ldrk gSA izksQkekZ izfroknh oknh ds :i esa rc i{kkarfjr fd;k tk ldrk gS tc oknh] oknh ds :i esa viuh fLFkfr ls fudyuk pkgrk gSA og blfy, fd] ;fn bl izdkj dgk tk,] oknh }kjk okn u flQZ vius Qk;ns ds fy,] vfirq ml izksQkekZ izfroknh ds Qk;ns ds fy, Hkh yk;k tkrk gS ftldk fgr esa lfEefyr gSA ,sls ekeys esa] viuk i{k okil ysus vFkok ifjR;kx djus esa oknh dks mu izfrokfn;ksa dks izfrdwyr% izHkkfor djus dh vuqKk ugha nsuk pkfg, ftudk fgr oknh ds fgr esa lfEefyr gSA ¿ iSjk 8À ¼4½ flfoy izfØ;k lafgrk] 1908 && vk- 1 fu- 10 rFkk vk- 23 fu- 1d && vk- 23 fu- 1d dk lfEeyu && vk- 1 fu- 10 esa tks vO;Dr Fkk og iqLrd gS && Li"Vhdj.k ds Lo:i dk gSA ¿ iSjk 8À ¼5½ flfoy izfØ;k lafgrk] 1908 && vk- 23 fu- 1d i{kdkj izksQkekZ izfroknh vFkok ,slk i{kdkj ugha ftldk fgr oknh ds fgr easa lfEefyr u gks && rr~le; oknh ds fo#) ekeyk cuk, j[kus ds fy, oknh ds :i esa i{kkarfjr ugha fd;k tk ldrkA , vkb vkj 1989 iVuk 2 folEerA , vkb vkj 1983 xqt- 194 rFkk , vkb vkj 1978 ia- rFkk gj- 216 foosfprA ¿ iSjk 9 rFkk 11À
U.L. Bhat, C.J. -- 1. Plaintiffs in a suit for declaration are the revision petitioners herein.
2. Alleging that they had obtained lease of the disputed land from the Government and they permitted the first defendant to construct a building therein and further alleging that he had purported to sell the building and the site thereof without authority, to defendants 2 to 6, the plaintiffs filed a suit for declaration that the sale-deeds so executed are null and void and for consequential permanent prohibitory injunction. The first defendant filed a written statement opposing the plaintiffs' claim. The defendants 2 to 6 also filed their written statement supporting their derivative title from the first defendant. On 7.4.1993, plaintiffs filed an application under Order 23 Rule 1 C.P.C. seeking to withdraw the suit. On 8.4.1993, defendants 3, 5 and 6 filed an application under Order 23 Rule 1A seeking to be transposed as plaintiffs to continue the suit. Lower Court heard both these applications and allowed both the applications. The effect is that so far as the plaintiffs are concerned, the suit is withdrawn by them and so far as the defendants 3, 5 and 6 are concerned, they are transposed as plaintiffs and the erstwhile plaintiffs are transposed as defendants. Plaintiffs being aggrieved by order passed against them under Order 23 Rule 1A C.P. C. have filed this revision.
3. It may be noticed that before filing the application under Order 23 Rule 1-A C.P.C., the plaintiffs and first defendant filed a compromise application, for recording the compromise and passing a decree in favour of the plaintiffs without notice to the defendants 2 to 6. The Court allowed the application and passed a decree against all the defendants without notice to defendants 2 to 6. The decree was subsequently recalled on the application filed by defendants 2 to 6. It is thereafter that the plaintiffs filed application to withdraw the suit.
4. Rule 1A was incorporated in Order 23 by the Amendment Act No. 103 of 1976. By the same Act, certain changes though not material were brought about in Rule 1. Sub-rule 1 of Rule 1, as it existed before amendment stated thus:
"At any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim." Sub-rule (2) as it existed prior to 1976 read thus :-"
(2) Where the Court is satisfied-
(a) that a suit must fail by reason of some formal defect, or
(b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim."
Sub-rule (1) of the amended Rule 1 reads as follows :-
"At any time after the institution of a suit, the plaintiff may, as against all or any of the defendants, abandon his suit or abandon a part of his claim."
The amended sub-rule (3) of Rule 1 of Order 23 reads thus :-
"(3) Where the Court is satisfied,-
(a) that a suit must fail by reason of some formal defect, or
(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such pint of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim."
The only change brought about in the Amendment Act is the substitution of the word ''withdraw" occurring in sub-rule (1) by the word 'abandon'. This change has little impact in the present case.
5. Rule 1A reads thus:
"R. 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 transposed as a plaintiff under Rule 10 of Order 1, the Court shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants." While
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