IMPORTANT POINT
Transposition as plaintiff – Trial Court has power to allow application for transposition of defendants as plaintiff, under its inherent power saved by Section 151 CPC.

JUDGMENT

Heard Sri M. R. S. Srinivas, learned counsel for the petitioner and Sri Ch. Markondaiah, learned counsel for the respondents, and perused the material on record.

2. This civil revision petition under Article 227 of the Constitution of India has been filed by the 1st defendant in O.S.No.104 of 1995 (in short ‘suit’) pending in the Court of the V Additional Senior Civil Judge (Senior Division), Vijayawada (in short ‘learned Court’). Muggula Ganga Ratnam, the mother of the present respondents No.1 to 6, filed O.S.No.104 of 1995 against Dhaggupati Yeeswara Krishna Mohan, 1st defendant in the suit/present petitioner for possession of the plaint schedule property and for future profits from the date of the suit till the date of delivery of possession after ejecting the 1st defendant and his tenants, with other consequential reliefs.

3. The plaintiff Muggula Ganga Ratnam died. The case of the 1st defendant in the suit/present petitioner was that the husband of the plaintiff Muggula Ganga Ratnam had entered into an agreement of sale with him.

4. Learned counsel for the petitioner submitted that the 2nd defendant in the suit/1st respondent herein filed I.A.No.539 of 2011 under Order 22 Rule 3 CPC to substitute the legal representatives in the place of the deceased plaintiff, I.A.No.540 of 2011 to set aside the abatement of the suit and I.A.No.541 of 2011 to transpose the 2nd defendant/1st respondent herein as plaintiff No.2 in the suit. On the aforesaid I.As, notices were issued to the 1st defendant. He inter alia filed a memo in I.A.No.541 of 2011 and requested the Court for examination of the 2nd defendant/1st respondent herein, inter alia, on the point of the Will based on which the case of the 2nd defendant was for transposition as plaintiff No.2, that the plaintiff, the mother had executed a Will in favour of the 2nd defendant. The alleged Will in favour of the 2nd defendant was also disputed by some of the other defendants, the sisters. That memo was rejected by the learned Court.

5. Being aggrieved from the rejection of such memo, as also the notices issued in I.A.Nos.539 and 540 of 2011, the 1st defendant in the suit/the present petitioner filed three civil revision petitions, viz., CRP Nos.3697, 3893 and 4049 of 2012. Those three civil revision petitions were disposed of by the common Order dated 28.12.2017 by this Court, observing that since the legal representatives of the deceased plaintiff Muggula Ganga Ratnam were already on record as defendants No.2 to 7, there was no question of filing application under the Limitation Act or for substitution under Order 22 or for setting aside the abatement under Order 22 Rule 9 CPC and therefore, there was nothing to adjudicate upon those applications by the learned Court.

6. However, with respect to the application for transposition of the 2nd defendant as 2nd plaintiff is concerned, it was observed that, that was a dispute between the 2nd defendant and the other legal representatives. In fact, the suit for possession was practically between the 1st defendant and the late plaintiff’s legal heirs so all were to be transposed, unless the 2nd defendant proved the Will as contemplated by Section 63 of the Indian Succession Act; wherein, the 1st defendant had got a stake to oppose the Will, if at all, but for that there was nothing to entertain those revision petitions. Consequently, all those civil revision petitions were closed to pursue their remedies before the trial Court. It was observed that the revision petitions were closed for the trial Court only to adjudicate the lis covered by I.A.No.539 of 2012 while for transposing 2nd defendant or all the other defendants, the legal representatives of deceased plaintiff, as plaintiffs.

7. Learned counsel for the petitioner submitted that in fact I.A.No.539 of 2012 was a clerical mistake, it should have been I.A.No.541 of 2012, which was for transposition of the 2nd defendant as 2nd plaintiff.

8. The 1st defendant had also taken a p