Orissa High Court
Piyush Hasmukhlal Desai vs Iskcon on 8 January, 2015
Author: A.K.Rath
Bench: Amitava Roy, A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
W.A.No.99 of 2014
An appeal under Cluase-10 of the Letters Patent read with Article-4 of the
Orissa High Court Order, 1948.
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Piyush Hasmukhlal Desai .......... Appellant
Versus
International Society for Krishna
Consciousness ( ISKCON) ........... Respondent
For Appellant - Mr.D.C.Mohanty
Senior Advocate
Mr.R.N.Acharya
Advocate.
For Respondent - Mr.J.K.Tripathy
Senior Advocate
Mr.B.P.Tripathy
Advocate
PRESENT:
THE HON'BLE CHIEF JUSTICE MR.AMITAVA ROY
AND
THE HON'BLE DR.JUSTICE A.K.RATH
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Date of Hearing : 16.12.2014 : Date of Judgment : 08.01.2015
Dr.A.K.Rath, J.In this appeal under Clause 10 of the Letters Patent, the appellant has challenged, inter alia, the judgment and order dated 31.1.2014 passed by the learned Single Judge in W.P.(C) No.6499 of 2009, whereby and whereunder, the learned Single Judge allowed the writ petition and set aside 2 the order dated 15.9.2008 passed by the learned District Judge, Puri in R.F.A.No.29 of 2005. By order dated 15.9.2008, the learned District Judge, Puri allowed the application filed by the respondent no.2 for substitution, condonation of delay and setting aside abetment and transposed the respondent no.2 to appellant.
2. Sans details, the short fact of the case is that the appellant and respondent as plaintiffs laid a suit for declaration of right, title and interest over the properties appertaining to khata no.88 covering various plots of mouza-Sipasarubali, Puri, area Ac.30.99 dec. in the Court of the learned Sub-Judge, Puri against Hasmukhlal Ballav Das Desai, which was registered as T.S.No.118 of 1988. Be it noted that the appellant-Piyush Husmukhlal Desai is the son of Hasmukhlal Ballav Das Desai. The written statement was filed by Hasmukhlal Ballav Das Desai- defendant admitting the claim of the plaintiffs. The suit was decreed. Thereafter, Hasmukhlal Ballav Das Desai through his power of attorney holder instituted a title suit, for a declaration that the decree passed in T.S.No.118 of 1998 was a nullity, in the Court of the learned Civil Judge (Senior Division), Puri, which was registered as T.S.No.123 of 2000. The said suit was subsequently transferred to the learned Additional Civil Judge (Senior Division), Puri and renumbered as Title Suit No.119 of 2001. In the said suit, the respondent and appellant herein were arrayed as defendants 1 and 2. Pursuant to issuance of summons, the respondent only entered appearance and filed written 3 statement denying the assertion made in the plaint. The said suit was dismissed. Challenging the judgment and decree dated 24.12.2004 and 7.1.2005 passed by the learned Civil Judge (Senior Division), Puri in T.S.No.119 of 2001, plaintiff-Hasmukhlal Ballav Das Desai filed R.F.A.No.29 of 2005 in the Court of the learned District Judge, Puri. In the said appeal, the respondent and appellant were arrayed as Respondents 1 and 2 respectively. Pursuant to issuance of notice, respondent no.1 entered appearance. The present appellant, who was respondent no.2, had chosen not to appear in spite of valid service of notice. During pendency of the appeal, the sole appellant died on 9.10.2006. While the matter stood thus, the respondent no.2 represented through his power of attorney holder filed an application under Order 22, Rule 3 C.P.C. praying to substitute the legal representatives of the appellant along with two other applications for condonation of delay and setting aside the abatement. The learned District Judge allowed the application for condonation of delay, setting aside the abetment and eventually allowed the application for substitution by order dated 15.9.2008. By the said order, the respondent no.2 was also transposed as appellant.
3. The present respondent challenged the order dated 15.9.2008 of the learned District Judge, Puri passed in R.F.A.No.29 of 2005 before this Court, being W.P.(C) No.6499 of 2009, which was allowed by the learned Single Judge.
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4. We have heard Mr. D.C.Mohanty, learned Senior Advocate and Mr.R.N.Acharya, learned Advocate for the appellant and Mr.J.K. Tripathy, learned Senior Advocate and Mr.B.P.Tripathy, learned Advocate for the respondent.
5. Mr.Mohanty, learned Senior Advocate submitted that during pendency of the appeal, Hasmukhlal Ballav Das Desai, the father of the appellant-Piyush Hasmukhlal Desai died on 9.10.2006 leaving behind his legal heir and successor. Since the right to sue survives, learned District Judge has rightly allowed the application for substitution and transposed the respondent no.2 to appellant. He further submitted that by playing fraud with the Court, the plaintiffs in T.S.No.118 of 1988 had obtained the decree. The property in question, situates in Puri Town, is a very valuable property. Unless the respondent no.2 (appellant) is transposed in R.F.No.29 of 2005 as appellant, then the fraud perpetrated by the plaintiffs in earlier suit will remain undressed. He further submitted that the learned Single Judge brushed aside the aforesaid facts and as such the judgment is liable to be quashed.
6. Per contra, Mr.Tripathy, learned Senior Advocate submitted that the present appellant and respondent laid a Title Suit No. 118 of 1988 in the Court of the learned Sub-Judge, Puri for declaration of right, title and interest against Hasmukhlal Ballav Das Desai. The same was decreed. But after lapse of some years, Hasmukhlal Ballav Das Desai filed a Title Suit 5 No.123 of 2000 in the Court of the learned Civil Judge (Senior Division), Puri to set aside the judgment and decree passed in T.S.No.118 of 1988. Thus, the defendant whose interest is adverse to the plaintiff cannot be transposed to plaintiff.
7. On the basis of the pleadings and rival submissions made at the Bar, the following points emerge for our consideration.
1. What is the meaning of the words "Right to sue Survives"
occurring in Rule 1 of Order 22 CPC ?
2. Whether the respondent, who has conflicting interest with the appellant and when the interest and identity are not the same between the appellant and respondent, can be transposed to appellant ?
Point No.1.
8. The expression of "Right to sue" has not been defined in the Code of Civil Procedure. The same has been interpreted by different High Courts. The oldest decision on the issue is of the Calcutta High Court. In Sham Chand Giri Vrs. Bhayaram Panday, 21 I.A. 134, it is held that the "right to sue" is based upon facts which go to make up what is called the "cause of action". The Bombay High Court, in Gopal Ganesh Abhyankar Vrs. Ramchandra Sadashiv, ILR Bom.26, held that "right to sue" means right to seek relief. It is apt to state here that the Calcutta and Bombay High Courts had interpreted Section 368 of the Code of Civil Procedure, 1877. In 6 Mt. Lakhpati Kuer Vrs. Daulat Singh, A.I.R.1927 Oudh 156, it is held that in Rule 6 of Order 22 C.P.C., the words used are "the cause of action" and not "the right to sue" and inference can be drawn that two expressions are intended to be synonymous. The Nagpur High Court, in Mt. Amritibai Vrs. Ratanlal and others, A.I.R.1927 Nagpur 343, relying on the decision of the Calcutta High Court in the case of Sarat Chandra Vrs. Mani Mohan (2) held that the expression "the right to sue" means the right to bring a suit asserting a right to the same relief which the deceased plaintiff asserted at the time of his death. The same view was taken by the Patna High Court in Jamuna Rai and others Vrs. Chandradip Rai and others, AIR 1961 Patna 178 and Gujarat High Court in Ibrahimbhai Karimbhai and others Vrs. State of Gujarat, AIR 1968 Gujarat 202.
9. Thus, the legal position that emerges from the reading of the aforesaid decisions is that the words "right to sue" occurring in Order 22 C.P.C. mean the right to bring a suit asserting a right to the same relief which the deceased plaintiff asserted at the time of his death.
10. In the instant case, as has been stated earlier, the appellant was a co-plaintiff with the respondent in T.S.No.118 of 1988. The said suit was decreed. The said judgment and decree of the aforesaid suit was challenged by the defendant Hasmuklal Ballav Das Desai in T.S. No.123/119 of 2001- 2000. In the later suit, the respondent and appellant were arrayed as defendants 1 and 2 respectively. The said suit was also dismissed, 7 whereafter Hasmukhlal Ballav Das Desai filed R.F.A.No.29 of 2005 in the Court of the learned District Judge, Puri. The respondent no.2 in R.F.A.No.29 of 2005 (present appellant) has conflicting interest with that of the appellant. The cause of action does not survive after death of the appellant. The relief, which had been prayed for by the appellant in the suit, cannot be granted to the respondent no.2. Thus, the applications for substitution, setting aside abetment and condonation delay filed by the respondent no.2 are totally misconceived. We concur with the view of the learned Single Judge.
Point No.2.
11. Order 1, Rule 10(2) of C.P.C. is quoted hereunder:-
"(2) Court may strike out or add parties.-The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added."
12. The language of Rule 10 is wide enough. The Court may transpose a defendant as plaintiff in exercise of powers under Rule 10(2) of C.P.C. Under Order 1 Rule 10(2) and Section 107 C.P.C., the appellate court has also power to transpose the respondent as appellant or an appellant as respondent in the ends of justice. The Calcutta High Court in Smt.Ajita 8 Debi Vrs. Musst. Hossenara Begum and others, A.I.R. 1977 Calcutta 59, held that where there is an affinity or identity of interests between the plaintiffs and one or more of the defendants, transposition can be made. The same view was taken by the Gujarat High Court in Jethiben Vrs. Maniben and another, A.I.R. 1983 Gujarat 194. Relying on the decision of the Gujarat High Court in the case of Jethiben (supra), the Karnataka High Court in the case of Sulemanji Sanibhai and others Vrs. Abde Ali and others, 1995 (4) CCC 327 held that law does not countenance a defendant who is not proforma defendant or a defendant whose interest is not common to that of the plaintiff to be transposed as a plaintiff to continue the suit against erstwhile plaintiff.
13. Thus, transposition of defendant as plaintiff can be made only when the defendant has some interest in common with that of the plaintiff. A proforma defendant can be transposed as plaintiff only when interest and identity are same between the plaintiff and one or more of the defendants. A person, whose interest is adverse to the plaintiff, cannot be permitted to be transposed as plaintiff.
14. As has been stated in the preceding paragraphs, Piyush Hasmukhlal Desai-defendant in Title Suit No.123 of 2000 has adverse interest with Hasmukhlal Ballav Das Desai, his father. The interest and identity are not the same between the plaintiff and defendant. In view of the same, the learned District Judge, Puri fell into patent error of law in 9 transposing the respondent to appellant. The view expressed by the learned Single Judge is in consonance with law.
15. On taking a holistic view of the matter, we are on ad idem that the learned District Judge, Puri fell into patent error of law in allowing the applications for substitution, condonation of delay and setting aside abetment and transposition of respondent no.2 as appellant in R.F.A.No.29 of 2005. The learned Single Judge has rightly set aside the said order. The appeal, being devoid of merit, is dismissed. No Costs.
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Dr.A.K.Rath, J.
Amitava Roy, C.J. I agree.
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Amitava Roy, C.J.
Orissa High Court, Cuttack.
The 8th January, 2015/CRB.
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