Advocates:
['M/S C JAGADISH', '', 'N C ASHOK KUMAR', 'C UMA MAHESWARI', 'M/S R SHASE', '', 'LEGAL AID COUNSEL', 'TAKES NOTICE', 'M/S V RAVICHANDRAN', 'VIDE COURT DT', 'm/s p settu', 's soumiya']

C.R.P. (PD) No.3507 of 2019

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 19.11.2021

CORAM:

THE HONOURABLE Mr. JUSTICE S.S.SUNDAR

C.R.P.(PD) No.3507 of 2019

and C.M.P. No.23022 of 2019

1. Nallammal

2. Palaniyammal

3. Rajshwari

...Petitioners

Versus

1. Periasamy

2. Satheesh

3. P.Eswari

4. Paramasivam

...Respondents

Civil Revision Petition is filed under Article 227 of the Constitution of

India to set aside the fair and decreetal order dated 1.08.2019 passed in I.A.

No.1 of 2019 in O.S. No.193 of 2013 on the file of the Court of the Principal

Subordinate Judge, Namakkal.

For Petitioners

: Mr. S.R.Varun Karthik

For Respondents -1 & 2 : Mr. V.Ravichandran

3 & 4 : Mr. M. Selvam

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C.R.P. (PD) No.3507 of 2019

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 4/10^th 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

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C.R.P. (PD) No.3507 of 2019

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

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C.R.P. (PD) No.3507 of 2019

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 contempl