Karnataka High Court
Sri. B.M. Devaiah vs Sri. C.P. Muthanna on 15 February, 2021
Equivalent citations: AIRONLINE 2021 KAR 429, 2021 (3) AKR 10
Author: Krishna S.Dixit
Bench: Krishna S.Dixit
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
R
DATED THIS THE 15TH DAY OF FEBRUARY, 2021
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NO.51356 OF 2016 (GM-CPC)
BETWEEN
SRI B.M. DEVAIAH
S/O SRI B.K. MUTHANNA
AGED ABOUT 59 YEARS
R/AT NO.C-11
HYDE PARK, WHITEFIELD
BANGALORE-560066. ... PETITIONER
(BY SRI B RAMESH, ADVOCATE)
AND
1. SRI C.P. MUTHANNA
S/O SRI C.K. MUTHANNA
AGED ABOUT 77 YEARS
R/AT SITE NO.56, HINKAL VILLAGE
MYSORE-570017.
2. SMT. KITTY MANDANNA
W/O SRI K.M. MANDANNA
AGED ABOUT 72 YEARS
R/AT K. HEMMANAHALLI VILLAGE
MARTI KYATHANAHALLI POST OFFICE
MYSORE-570005.
PRESENTLY RESIDING AT
P-2, SAMBRAM APARTMENTS
GOKULAM MAIN ROAD
V.V.MOHALLA POST OFFICE
MYSORE-570002. ... RESPONDENTS
( BY MR. S SRIRANGA, ADV FOR R1
MR. N KUMAR, ADV FOR R2
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ORDER DATED 07.09.2016 MARKED AS ANNEXURE-A PASSED
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BY THE HON'BLE TRIAL COURT ON IA NO.20/2014 FILED BY
THE PETITIONER HEREIN UNDER ORDER 1 RULE 10(2) OF
CODE OF CIVIL PROCEDURE, 1908 IN O.S.NO.98/1986 AND
ALLOWED THE APPLICATION AS PRAYED FOR AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY THROUGH VIDEO
CONFERENCE, THE COURT MADE THE FOLLOWING:
ORDER
The subject suit in O.S.No.98/1986 is for a decree of dissolution of Partnership Firm and for the rendition of accounts; petitioner happens to be the first defendant; first respondent happens to be the second defendant and second respondent is the plaintiff; a Preliminary Decree for dissolution of the Firm is entered on 31.08.1990; the enquiry as to rendition of accounts & mesne profits is stated to be pending; at this stage, the plaintiff moved a memo seeking leave of the Court below for withdrawal of the suit and the same is rejected on 29.08.2016.
2. Petitioner moved the subject application under Order I Rule 10(2) although the right provision is Order XXIII Rule 1A of the Code seeking his transposition as the plaintiff since, the original plaintiff wanted to withdraw the suit by filing application under Order XXIII Rule 1; pursuant to the Preliminary Decree in question there was FDP in which a 3 warrant of arrest has been issued against the first respondent herein; his challenge thereto in Writ Petition, in Writ Appeal & later in SLP has been dismissed; the request for transposition having been opposed by the respondents herein, the learned trial judge vide order dated 07.09.2016 a copy whereof is at Annexure-A has rejected the request; that is how, this writ petition has arisen.
3. After service of notice, the respondents having entered appearance through their counsel resist the writ petition contending that: there is no identity of the claim of the petitioner in the Written Statement with that in the plaint; the petitioner has not filed the Counter Claim; plaintiff being the dominant litus, can seek the withdrawal of the suit and such an application is very much pending; there is another kindred comprehensive suit in O.S.No.557/2012 filed by the first respondent wherein petitioner being the first defendant can workout his remedy which he wants to achieve by the intended transposition; so contending, both the learned advocates appearing for the respondents press for the dismissal of the writ petition.
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4. Having heard the learned counsel for the parties and having perused the petition papers, this Court is inclined to grant indulgence in the matter as under and for the following reasons:
a) As already mentioned above, the subject suit is one for the dissolution of Partnership firm and rendition of accounts; a Preliminary Decree is made on 31.08.1990 and firm is held to be dissolved w.e.f. 14.06.1985; accordingly the decree has also been drawn on 31.07.1991; the enquiry as to rendition of accounts and also as to mesne profits has been set in motion; at the instance of the petitioner, properties of the firm came to be attached; later on 04.07.2007 petitioner's application in I.A.No.4/2006 having been favoured, an arrest warrant has been issued against the first respondent for detaining him in civil prison for willful disobedience of the court order; first respondent's challenge to the same in W.P.No.19990/2007 was dismissed by the single Judge of this Court on 14.07.2008; this dismissal has been affirmed by the Division Bench in his W.A.No.1230/2008 vide order dated 26.03.2009; he had filed SLP Nos. 24009-24010/2009 against the same wherein he had given an undertaking to make the payment which he did not adhere to and 5 consequently the SLPs came to be dismissed on 11.09.2009 by virtue of preemptory order dated 06.07.2009; that being the position, the second respondent's resistance to the transposition of petitioner is only to clandestinely undo the effect of the proceedings in the court below, in this court and in the highest court of the country; therefore what cannot be done directly cannot be permitted to be done circuitously;
rejection of petitioner's request for transposition that too when the original plaintiff wants to withdraw the suit militates against all this and more too.
b) As already mentioned above, there is a decree for the dissolution of the Partnership Firm and thus, rights of the parties qua the Firm have attained finality; there were several interlocutory orders which had the trappings of finality qua the rights of the parties as reflected in the trial court's proceedings; they are the orders relating to appointment of receiver, attachment of property, direction for payment/deposit of income of the firm, warrant of arrest and the like; most of them have been done at the instance of the petitioner; as already mentioned above, the challenge by the first respondent to the arrest warrant upto the Apex court 6 failed; the records reveal that even in the SLPs, a lot of gimmick has been played by the first respondent, to the prejudice of the petitioner herein; of course, all that did not yield the desired result, is beside the point; that being the position if transposition of petitioner as plaintiff is not sanctioned, enormous injustice would be meted out to him since the suit itself may stand withdrawn by the respondent- plaintiff and thereby everything done therein may fall down as a pack of cards; a court of justice more particularly a writ court cannot approve of the same.
(c) The vehement contention of learned counsel for the respondent-plaintiff that it is his suit and therefore as a dominant litus he can withdraw the same and that a defendant in the absence of a Counterclaim cannot seek transposition as plaintiff, is bit difficult to countenance; the provisions of Order XXIII Rule 1A r/w Order I Rule 10 give a substantive right to a defendant to seek transposition when the original plaintiff wants to withdraw the suit or abandon the suit claim; the said provision reads as under:
"When transposition of defendants as plaintiffs may be permitted.- Where a suit is withdrawn or abandoned by a plaintiff under rule 1, the Court shall, in considering such application, have due 7 regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants."
The text & context of the above provision does not even remotely suggest that a Counterclaim is a sine qua non for its invocation; had it been the intent of the law maker, the text of the said provision would have been a bit different and would have given an indication to that effect. The heavy reliance placed by learned counsel Sriranga on Patna High Court decision in DURGA PRASAD -vs- LAL BABU SAHA, 1984 SCC ONLINE PATNA 122 does not much come to his rescue; the said decision appears to have been rendered in the fact matrix of that case which is miles away from the one in the case at hands; this apart, the argued ratio of the said decision does not appear to cotton with the observations of the Apex Court in R DHANASUNDARI Vs. A N UMAKANTH, 2019 SCC OnLine SC 331.
(d) The Apex Court in Dhanasundari supra, having scanned the provisions of Order XXIII Rule 1A, has observed at para 11 as under:
"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 8 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 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 XXIII 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."
The Apex Court has made the above observations in affirming the decision of the Madras High Court in R DHANASUNDARI Vs. A N UMAKANTH, 2006 SCC OnLine Mad 913; para 14 which treated the question at hands is as follows:
"From a perusal of the Rule and the ratio laid down in the aforesaid decision of this Court, the following tests appear to hold the field, in deciding the right of a defendant to transpose himself as a plaintiff:
(a) Whether the defendant who seeks transposition has substantial question to be decided?
(b) Whether such substantial question has to be decided against any of the other defendants?9
(c) Whether the defendant seeking transposition has an identity of interest along with the plaintiff as against other defendants?
(d) Whether the success of the plaintiff would result in the automatic success of the defendant who seeks transposition?
(e) Whether the withdrawal or abandonment by the plaintiff, of the Suit, results in some vested right of the defendant getting defeated?
The above tests are only illustrative and not exhaustive." The observations of the Apex Court and of the Madras High Court show that what is required for transposition is not the Counterclaim but an identity of interest, which in the instant case galores in the record of the suit proceedings.
e) The contention that first respondent has filed a kindred & comprehensive suit in O.S.No.557/2012 wherein petitioner happens to be the first defendant, is true; but, the transposition sought for by the petitioner is in the suit of 1986 in which, already there is a Preliminary Decree which is acted upon by the parties, materially altering their positions; there are several subsequent orders made therein whereby vested rights have been created in favour of the petitioner qua the respondent-defendant; that is the reason why the legal battle had reached the floor of the Apex Court too and the 10 respondent-defendant having fought fiercely, lost it; the other suit is filed almost a quarter century after the first one was instituted; transposition which is a substantive right of a defendant in a suit of the kind cannot be cut short on the ground that he has been made a defendant in some other suit and that he should work out his remedy there; such a contention does not fit into even the penumbra of the provisions of Order XXIII Rule 1A; far from that, it militates against the intent of the said provisions, to say the least, and therefore cannot be countenanced; whatever stand the petitioner as the defendant has to take in the subsequent suit, is for him to take there; so is also with the plaintiff in the said suit; however, what has been brought about by fighting the litigation for three decades & more, cannot be permitted to be wiped out by conceding to the request of the respondent-plaintiff to withdraw the suit itself followed by the denial of petitioner's request for transposition as plaintiff; a just formula has to be worked out by judicial ingenuity whereby the original plaintiff is permitted to exit from the suit fray and the defendant having identifiable interest is permitted to don the mantle of the plaintiff so that the judicial process is not used as an instrument of fraud; after 11 all, a case is fought in the Courts for the purpose of reaping the usufructs of its end product within the framework of law.
(f) Learned advocates appearing for the petitioner and the respondent-defendant signified their consent for the exit of the respondent-plaintiff from the suit fray and therefore the application seeking withdrawal of the suit having been suitably allowed, the 2nd respondent is permitted to withdraw himself from the suit proceedings; however, this has to be with the transposition of the petitioner so that the said proceedings would continue; since the transposition is being sanctioned, it is open to the petitioner to amend his Pleadings/Written Statement which entail on transposition so that the purpose of transposition becomes meaningful & productive; this course would silence the vehement contention of learned counsel Mr.Sriranga as to alleged absence of identity of petitioner's interest with the outgoing plaintiff as against the respondent-defendant; this would facilitate for prosecution of the suit and other off-shoot proceedings; it hardly needs to be stated the request for such amendments shall be treated by the learned Judge of the Court below with due leniency and in accordance with law. 12
In the above circumstances, this writ petition succeeds; impugned order is invalidated; the learned Trial Judge is requested to permit transposition of the petitioner as the plaintiff in the subject suit and if necessary, permit him to suitably amend his Written Statement for facilitating prosecution of the suit; the respondent-plaintiff shall be permitted to exit from the suit fray in terms of his pending application in this regard; such exit shall not in any way affect the rights of all other parties to the suit and other relative proceedings, in any way.
All contentions of the parties having been kept open, the learned judge of the Court below is requested to accomplish the pending proceedings within an outer limit of one year, and report compliance to the Registrar General of this Court.
Costs reluctantly made easy.
Sd/-
JUDGE Nms/Snb