Delhi High Court - Orders
Sainath Krishnamani vs Gayatri Krishnamani Iyer & Ors on 1 June, 2022
Author: Amit Bansal
Bench: Amit Bansal
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 236/2019
SAINATH KRISHNAMANI ..... Plaintiff
Through: Mr. M. Tarique Siddiqui, Mr. Tanveer
Ahmad and Mr. Mohd. Noumaan,
Advocates.
versus
GAYATRI KRISHNAMANI IYER & ORS. ..... Defendants
Through: Ms. Jasmine Damkewala and Mr.
Vaishali Sharma, Advocates for D-1
and D-2.
CORAM:
HON'BLE MR. JUSTICE AMIT BANSAL
ORDER
% 01.06.2022 I.A. 8380/2022 (of the defendant no. 3 u/O-XXIII R-1A r.w. O-I R-10 of CPC) & I.A. 8381/2022 (of the defendant no. 3 u/s 153 CPC)
1. I.A. 8380/2022 has been filed on behalf of the defendant no. 3 under Order XXIII Rule 1A read with Order I Rule 10 of the Code of Civil Procedure (CPC), 1908, seeking transposition of the defendant no. 3 as the plaintiff.
2. I.A. 8381/2022 has been filed on behalf of the defendant no. 3 under Section 153 read with Section 151 of the CPC for amending the order dated 20th January, 2020 passed by this Court and refer the matter for mediation to Delhi High Court Mediation and Conciliation Centre (Mediation Centre).
3. Father of the parties, late Sh. M.N. Krishnamani, Senior Advocate Signature Not Verified Digitally Signed By:AMIT BANSAL CS(OS) 236/2019 PageSigning 1 of Date:02.06.2022 4 16:29:50 expired on 15th February, 2017 leaving behind four children as his only legal heir. The plaintiff was the only son of late Sh. M.N. Krishnamani and the three defendants were the daughters. During the pendency of the suit, parties were referred to the mediation where, the parties entered into a family settlement dated 27th November, 2019 dividing the properties left behind by their parents. This Court vide order dated 20th January, 2020 decreed the suit in terms of the aforesaid settlement agreement. The decree sheet is yet to be drawn in the suit.
4. On 10th February, 2021, the plaintiff, Sh. Sainath Krishnamani expired. He was unmarried and died intestate. Hence, under the Hindu Succession Act, 1956 the share of the deceased plaintiff in the suit property devolved upon his three sisters, who are the defendants herein.
5. Counsel for the applicants has relied on provisions of Order 23 Rule (1-A) which is set out below:
"1A. When transposition of defendants as plaintiffs may be permitted. - Where a suit is withdrawn or abandoned by a plaintiff under rule 1, and a defendant applies to be transposed as a plaintiff under rule 10 of Order I, the Court shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants."
6. In R. Dhanasundari vs. A.N. Umakanth & Ors., (2020) 14 SCC 1, while interpreting provisions of Order XXIII Rule (1-A) the Supreme Court made the following observations:
"11. As per Rule 1-A ibid., in the eventuality of plaintiff withdrawing the suit or abandoning his claim, a pro forma defendant, who has a substantial question to be decided against the co-defendant, is entitled to seek his transposition as plaintiff for determination of such a question against the said co-defendant in the given suit itself. The very Signature Not Verified Digitally Signed By:AMIT BANSAL CS(OS) 236/2019 PageSigning 2 of Date:02.06.2022 4 16:29:50 nature of the provisions contained in Rule 1-A ibid. leaves nothing to doubt that the powers of the Court to grant such a prayer for transposition are very wide and could be exercised for effectual and comprehensive adjudication of all the matters in controversy in the suit. The basic requirement for exercise of powers under Rule 1-A ibid. would be to examine if the plaintiff is seeking to withdraw or to abandon his claim under Rule 1 of Order 23 and the defendant seeking transposition is having an interest in the subject-matter of the suit and thereby, a substantial question to be adjudicated against the other defendant. In such a situation, the pro forma defendant is to be allowed to continue with the same suit as plaintiff, thereby averting the likelihood of his right being defeated and also obviating the unnecessary multiplicity of proceedings."
7. The aforesaid observations of the Supreme Court are fully applicable in the present case, as in the present case the claim of the plaint has been abandoned on account of his death and the defendants are seeking transposition as they have an interest in the subject matter of the suit. It would be in the interest of justice if the defendant no.3 is transposed as a plaintiff as it would avoid unnecessary multiplicity of proceedings.
8. In Phoolchand & Anr. vs. Gopal Lal, AIR (1967) SC 1470, the Supreme Court has observed that in partition suits, where one party dies after the preliminary decree has been passed and hence the shares of the other parties are augmented, the court can pass a fresh preliminary decree. It would be in the interest of justice if the rights/shares of the parties are finally settled and the preliminary decree varied, before a final decree is prepared. In the present case also, final decree is yet to be passed. Therefore, the shares of the party as determined in the decree passed by this Court on 20th January, 2020 can be changed in view of the subsequent development of the plaintiff passing away without leaving behind any Class I legal heirs.
Signature Not Verified Digitally Signed By:AMIT BANSALCS(OS) 236/2019 PageSigning
3 of Date:02.06.2022
4 16:29:50
9. In view of the above discussion, I.A. 8380/2022 is allowed and the defendant no. 3 is transposed as the plaintiff in the aforesaid suit. Amended memo of parties filed with the application is taken on record.
10. Further, I.A. 8381/2022 is allowed and the order dated 20th January, 2020 is recalled and the parties are referred for mediation to the Mediation Centre.
CS(OS) 236/2019
11. In view of the order dated 20th January, 2020 decreeing the suit being recalled, the proceedings in the suit are revived.
12. Registry is directed not to draw the decree sheet.
13. List before the Mediation Centre on 3rd June, 2022 at 04.00 PM.
14. List before the Court on 29th July, 2022.
AMIT BANSAL, J
JUNE 1, 2022
sr
Signature Not Verified
Digitally Signed By:AMIT
BANSAL
CS(OS) 236/2019 PageSigning
4 of Date:02.06.2022
4 16:29:50