O R D E R

This Civil Revision Petition is directed against the order passed by the learned Principal Subordinate Judge, Namakkal, in I.A. No.1 of 2019 in O.S.

No.193 of 2013.

2. The revision petitioners are the plaintiffs 1 to 3 in O.S. No.193 of 2013 on the file of the Principal Sub Court, Namakkal. The revision petitioners along with respondents 3 and 4 filed a suit for partition and separate possession of the plaintiff's 4/10th share in all the suit properties. It is the case of the revision petitioners that the suit properties are the joint family properties. The respondents 1 and 2 who are defendants in the suit filed a written statement disputing the character of suit properties on the basis that their father executed a Will in favour of first defendant and that the first defendant had executed a settlement deed in favour of the second defendant. It is seen from the plaint that the first petitioner is the wife of one Chinnagounder and petitioners 2 and 3 are the daughters of Chinnagounder. The respondents 2 to 4 are the grand children . The first respondent is the son of Chinnagounder. During pendency of the suit it is stated that the respondents 3 and 4 who were entrusted to conduct the case was acting against the interest of the revision petitioners. Respondents 3 and 4 herein are plaintiffs 4 and 5 in the suit. It was further stated that the advocates engaged by respondents 3 and 4 reported no instruction before the trial Court. It is in the said circumstances the revision petitioners expressed some apprehension because of the attitude of respondent 3 and 4. Hence, the revision petitioners filed an application in I.A. No.1 of 2019 under Order 1 Rule 10(2), before the Principal Subordinate Judge, Namakkal, to transpose plaintiffs 4 and 5 as defendants 3 and 4 in the suit. The trial Court dismissed the application as not maintainable. The trial Court was of the view that the provision under Order 1 Rule 10(2) C.P.C. was to strike off or add parties to the suit on the application of the parties and that it cannot be used for transposing some of the plaintiffs as defendants or defendants as plaintiffs. It is also admitted that evidence on plaintiff's side and defendant's side were completed and therefore, it was contended that the plaintiffs 4 and 5 cannot be transposed as defendant 3 and 4.

3. It is seen that the petitioners have come up with a specific plea about the conduct of respondents 3 and 4. It is stated that the respondents 3 and 4 have shown their attitude in support of defendants. It is well settled that the Court has power to transpose any one of the party who has been arrayed either as plaintiff or defendant depends upon the need or if the cause of action survive. This Court, in the case of Selvaraj Vs. Sundararajan, dated

15.04.2005, has considered the scope of power of Court to transpose. After finding that Order 23 Rule 1-A C.P.C does not contemplate a situation of transposing any one of the plaintiff,as defendant, this Court has recognized the inherent power under Section 151 C.P.C. The relevant paragraphs of the judgment are extracted hereunder for convenience:

“... 10. The Third Plaintiff is the Brother of First and Second Plaintiff and one Krishnan - Husband of the Fourth Plaintiff-Mercy. The Third Plaintiff has signed in the Vakalat, Plaint and other relevant affidavits. But, during the trial Stage, the Third Plaintiff, figuring as Witness on the side of the Defendants has denied the signatures in the Vakalat, Plaint and other records. The Third Plaintiff has turned around and deposed against the Plaintiffs stating that the Suit Property has been in possession and enjoyment of the Defendants. Order 23 Rule 1-A C.P.C provides for the circumstances in which the Defendant could be transposed as the Plaintiff - i.e. where the Suit is abandoned or withdrawn, the Defendant could be transposed as the Plaintiff. Order 23 Rule 1-A C.P.C does not provide for transposition of the Plaintiff as the Defendant. But, th