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High Court of Madhya Pradesh
Smt.Anjuli Palo, J.
SIDDHARTH PATEL – APPELLANT
Versus
JYOTSNA DEVI wd/o PARMANAND BHAI PATEL (since deceased) SHRAVAN BHAI PATEL & ORS. – RESPONDENTS
Civil Rev. No. 273 of 2021
Decided On : 05-07-2022
transposition - Civil Procedure Code - Order 23 Rule 1-A, Order 1 Rule 10, Order 22 Rule 4-A, Order 22 Rule 5, Order 22 Rule 3 - The court discussed the transposition of defendant No. 3 as plaintiff under Order 23 Rule 1-A and the abatement of the suit under Order 22 Rule 4-A and Rule 5 of the Civil Procedure Code.
Fact of the Case:
The plaintiff filed a suit for partition and separate possession of properties against her sons, daughters, and a company. During the pendency of the suit, the plaintiff passed away, and defendant No. 3 filed an application to be transposed as the plaintiff. The trial court allowed the application, leading to the revision.
Finding of the Court:
The court found that the interest of the plaintiff and defendant No. 3 were not the same, and defendant No. 3 was not a proforma defendant. Therefore, the trial court erred in allowing the application for transposition. Consequently, the suit was held to have abated.
Issues: The main issue was whether the trial court erred in allowing the application for transposition of defendant No. 3 as the plaintiff and in dismissing the application for abatement of the suit.
Ratio Decidendi: The court held that transposition of a defendant as a plaintiff is permissible only if the defendant has a substantial question to be decided against other defendants and has an interest identical to that of the plaintiff. The court also emphasized that a defendant cannot be transposed as a plaintiff if their interest is adverse to the plaintiff.
Final Decision: The revision was allowed, and the order allowing the transposition of defendant No. 3 as plaintiff was set aside, leading to the abatement of the suit.
ORDER : – The applicant/defendant No. 2 has filed this revision being aggrieved by order (Annexure A-20) dated 3-8-2021 passed by the District Judge (28th), Jabalpur in R.C.S. No. 800023/2015 whereby the applications filed by defendant No. 3 under Order 23, Rule 1-A of Code of Civil Procedure and under Order 1, Rule 10, Civil Procedure Code read with section 151, Civil Procedure Code have been allowed permitting her to be transposed as plaintiff; the application filed by defendant No. 7 Kohinoor Tabacco Private Limited for dismissing the suit as abated has been dismissed and the application filed by defendant No. 1 under Order 22, Rule 4-A read with Order 22, Rule
5 Civil Procedure Code has been dismissed.
2. The facts giving rise to this revision are that plaintiff Jyotsna Devi Patel filed a suit bearing R.C.S. No. 23A/2015 on 16-4-2015 for partition and separate possession of House No. 933, New No. 908, Gol Bazar, Jabalpur and 1/5th share in respect of the agricultural land bearing Survey No. 55, 64, 68, 79, 84, 118, 117/3, 119/2, 165, 167, 173/1, 172/1, 189/3, 189/1, 203/5 and 86/3 total area 60.52 hectare i.e. 149.56 acres situated at village Baderakala, P.C. 27, Tahsil Panagar, District Jabalpur including the houses constructed thereon against the defendants, who are her sons, daughters and grand son. The applicant/defendant No. 1 and defendant No. 2 are the sons, defendant Nos. 3, 4 and 5 are the daughters of the plaintiff and defendant No. 7 is a registered company which is in physical possession of a portion of the suit House No. 933 as bona fide purchaser as per registered sale-deed dated 14-4-1972 executed by Parmanand Bhai Patel and plaintiff Smt. Jyotsna Devi Patel.
3. In the aforesaid civil suit, defendant No. 6 filed his written statement on 28-4-2017. Defendant No. 7 filed its written statement on 3-10-2017, the applicant/defendant No. 2 and defendant No. 1 filed their separate written statements on 24-10-2017 and defendant Nos. 4 and 5 proceeded ex parte in the year 2017. Defendant Nos. 1, 2, 6 and 7 in their written statements have denied the claim of the plaintiff. Defendant No. 3 in her written statement filed on 15-11-2017 denied the claim of the plaintiff and raised some preliminary objections.
4. During the pendency of the aforesaid civil suit, the plaintiff died on 11-4-2019. Defendant No. 3 Dr. Neena Patel filed an application on 17-5-2019 under Order 23 Rule 1-A read with Order 1, Rule 10 and section 151 of Civil Procedure Code through her power of attorney Gautam Patel for transposing her as the plaintiff in the civil suit contending that after death of the plaintiff, a substantial question has arisen for consideration and adjudication among the four co-defendants in respect of their respective share in the suit property.
5. Defendant No. 1 opposed the application by filing his reply on 12-12-2019 and additional reply on 4-2-2020. Defendant No. 4 filed his reply to the transposition application on 13-1-2020. Defendant No. 5 filed his reply to the transposition application on 20-1-2020. Defendant No. 7 filed its reply for transposition application on 21-8-2020.
6. On 14-2-2020, defendant No. 1 filed an application under Order 22, Rule 4-A read with Order 22, Rule 5, Civil Procedure Code contending that the sole plaintiff has died on 14-4-2019 and no application was filed by any of the parties for substitution of legal representatives and as the interest of the plaintiff and defendants was adverse to each other, the Court may pass order under Order 22, Rule 4-A and determine the question as to the legal representatives of deceased plaintiff under Order 22, Rule 5, Civil Procedure Code.
7. The applicant/defendant No. 2 filed his reply opposing the application for transposition filed by defendant No. 3 contending that the suit had abated automatically by operation of law after 90 days of 14-4-2019 as no application was filed for substitution of legal representatives of the deceased sole plaintiff. It was
The main legal point established in the judgment is that transposition of a defendant as a plaintiff is permissible only if their interest is identical to that of the plaintiff and they have a substa....
In partition suits, transposition of defendants as plaintiffs must be considered based on substantial claims; the court erred in denying this request without proper assessment.
In a partition suit, unilateral withdrawal by a plaintiff is not permitted if it adversely affects defendants' rights; defendants can assert claims by transposing themselves as plaintiffs.
The legal representatives of a deceased counter claimant can be transposed as claimants in the counter claim, and the right to sue survives on the surviving family members.
The main legal point established in the judgment is the requirement of commonality of interest for transposition under Order 1 Rule 10 CPC, the implications of Order 41 Rule 22 and Rule 33 CPC, and t....
Transposition of a defendant as a plaintiff under CPC requires the original plaintiff to withdraw or abandon the suit, ensuring no multiplicity of proceedings.
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