IMPORTANT POINT
When suit has abated and is no longer pending, application for transposition under Order 1 Rule 10 (2) C.P.C. filed by defendant as plaintiff is not maintainable.

JUDGMENT

Dr. A.K. Rath, J.—By this petition under Article 227 of the Constitution, challenge is made to the order dated 3.8.2018 passed by the learned 3rd Addl. Civil Judge (Senior Division), Cuttack in C.S (I) No.372 of 2015 whereby and whereunder learned trial court has rejected the application of defendant no.2 under Order 1 Rule 10(2) CPC to transpose her as plaintiff.

2. One Nishamani Behera has instituted the suit for declaration that the registered sale deed dated 17.5.2018 executed by her son Mohan in favour of defendant no.1 is void, partition of the suit schedule property and permanent injunction.

3. Case of the plaintiff was that Madhusudan Behera was the common ancestor of the plaintiff and defendants 2 to 5. He died in the year 1993 leaving behind his wife, plaintiff and son Mohan. Mohan died in the year 2014 leaving behind his widow Minati-defendant no.2 and two sons, defendants 3 and 4 and daughter-defendant no.5. The suit property originally recorded in the name of Madhusudan. After death of Madhusudan, the suit property was mutated in the name of plaintiff and Mohan in Mutation Case No.687 of 2002. While matter stood thus, Mohan alienated the suit schedule property in favour of defendant no.1 by means of a registered sale deed dated 17.5.2008. The suit property is the ancestral property of the plaintiff and defendant nos.2 to 5. Mohan had no exclusive title over the same. He had no right to alienate the same in favour of defendant no.1.

4. While the matter stood thus, plaintiff died on 6.2.2017. On 16.5.2017, defendant no.2 filed an application under Order 1 Rule 10(2) CPC for transposition as plaintiff. Defendant no.1 filed an objection. Learned trial court rejected the petition holding that the suit has abated by operation of law and as such, the petition is not maintainable.

5. Mr. Deba Ranjan Mohapatra, learned counsel for the petitioner submitted that Nisamani is the mother-in-law of defendant no.1 and grand children of defendants 2 to 5. All the legal heirs are already on record. After death of plaintiff, the right to sue survives. Though an application under Order 1 Rule 10(2) CPC was filed for transposition, but then the same can be construed to be an application under Order 22 Rule 2 and 3 CPC. Learned trial court ought to have allowed the application. He placed reliance on the decision in the case of Musammat Hifsa Khatoon and others v. Mohammad Salimar Rahman and others, AIR 1959 Patna 254.

6. Per contra, Ms. Soumya Sucharita Deo, learned counsel for the opposite party no.1 submitted that the sole plaintiff died during pendency of the suit. The suit abated. The application under Order 1 Rule 10 (2) CPC for transposition does not arise. She further submitted that the daughter of defendant no.1-opposite party no.1 instituted C.S. No.580 of 2018 in the court of learned Civil Judge (Senior Division), 1st Court, Cuttack wherein defendants 2 to 4 are parties.

7. The seminal question that hinges for consideration as to whether defendant no.2 can be transposed as plaintiff, when the suit has abated.

8. The Court may transpose the defendant as plaintiff in exercise of its power under Rule 10(2) of Order 1 C.P.C. The same is quoted hereunder:-

“(2) Court may strike out or add parties.- The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.”

9. In Gopal @ Gopal Chandra Ojha v. Ramakanta Ojha, 2016 (I) CLR 639, this Court held :

“6. What is the meaning of the words “at any stage of the proceedings” appearing in Order 1 Rule