Patna High Court
Durga Prasad vs Lal Babu Sah And Anr. on 19 April, 1984
Equivalent citations: AIR1984PAT310, AIR 1984 PATNA 310, (1984) PAT LJR 652
ORDER Satya Brata Sanyal, J.
1. This civil revision is by the plaintiff. It is directed against an order transposing the intervener-defendant, Nanda Prasad Tripathi, as plaintiff in the suit. The original plaintiff assailed the order being wholly without jurisdiction.
2. The facts briefly stated are as hereunder:--
Plaintiff instituted a suit for eviction against defendant 1 for arrears of rent, personal necessity etc. The tenancy is said to have begun in. April, 1971 and the rent payable was Rs. 100/- per month according to English calendar month. The tenant stopped making payment of rent since December, 1975. Hence the suit for eviction as well as for other grounds.
3. Tenant-defendant filed a written statement and challenged ownership of the building in question. According to the tenant there being litigation about the ownership of the building between the plaintiff and one Gita Devi, defendant deposited the rent before the House Controller in Misc. Case No. 79/77 and, therefore, there is no default. On 12-8-1978, Gita Devi filed a petition under Order 1, Rule 10, C. P. C., as being a necessary party in the suit and the said prayer was allowed on 2-1-1979. It may be stated here that the suit inter se between the plaintiff and Gita Devi as to who is the real owner of the property came in Second Appeal 602/74 and it was decided that the plaintiff was the benamidar and Gita Devi was the real owner of the property.
4. The litigation between the plaintiff and Gita Devi has gone to the Supreme Court at the instance of the plaintiff and the civil appeal bears the number 2738 of 1979. It appears that the Supreme Court has passed an order of stay of Misc. Case No. 44 of 1979 which related to delivery of possession of the disputed property. The matter before the Supreme Court seemed to have compromised even though no formal order has yet been passed. A petition of compromise is said to have been filed in the Supreme Court on 27-3-1980. Gita Devi has been Paid a sum of Rs. 29,000/- on 30-3-1980 pursuant to the compromise petition pending before the Supreme Court wherein Gita Devi undertook to transfer her right in the disputed property in favour of the plaintiff. On 11-3-1980, Gita Devi filed a petition to expunge her name from the suit and on 18-4-1980, Gita Devi's name was struck off from the suit who was earlier allowed to be impleaded in the suit.
5. On 22-4-1981, one Nanda Prasad Tripathi, filed an application for being impleaded as a party defendant claiming himself to have purchased the disputed property from Gita Devi through a registered sale deed dated 22-6-1980 for a sum of Rs. 20,000/-. It may be stated here that this sale deed has been executed three months after Gita's acceptance of Rs. 29,000/- pursuant to the compromise petition filed in the Supreme Court. The prayer of Nanda Prasad Tripathi for being impleaded as party was allowed by the Court below on 21-6-1982 as the civil revision taken by the plaintiff against the said order bearing Civil Revision No. 1078 of 1982 was dismissed in limine by this Court. However, Nanda Prasad Tripathi filed a written statement completely repudiating the claim of the plaintiff and pleaded paramount title to the suit property. It was further pleaded that defendant 1 and the original plaintiff are in collusion with each other and the averment that a Kirayanama was executed by the defendant is collusive, forged and fabricated. The story of making default in the payment of rent has also been denied. It has further been stated that defendant 1 was inducted by Gita Devi and defendant 1 stopped making payment of rent since August, 1977 but the plaintiff has no concern with the default of defendant 1. It was prayed that the suit should be dismissed with cost.
6. It appears that thereafter Nanda Prasad Tripathi filed an application for transposing him to the category of plaintiff and transposing the original plaintiff to the category of defendant. The said petition was filed under Order 1, Rule 8 (5), Civil P. C. It is stated that the occasion for filing the said petition was because the original plaintiff filed a petition of compromise on 24-1-1983 in terms of which a prayer was made to dispose of the suit.
7. The Court below passed the impugned Order transposing the intervener to the category of the plaintiff on the ground that the plaintiff has left taking steps occasioning last four adjournments and he even remained absent on the day the matter was taken up, therefore, the ends of justice require to transpose the intervener-defendant to the category of plaintiff to avoid multiplicity of the suit. The Court further directed that the court fee paid by the original plaintiff may be returned to them by the transposed plaintiff and the office was directed to make necessary correction and raise demand against the transposed plaintiff it necessary.
8. The learned counsel for the plaintiff-petitioner contended that the absence of the petitioner on few dates was because of their having gone to the Supreme Court for taking steps in the matter pending before the Supreme Court as also to take legal advice in the matter because of Gita Devi's previous conduct. They further contended that the interest of the Plaintiff and that of the intervener-defendant and their stand are so contradictory with each other that they cannot be transposed as plaintiff. In short, the plaintiff contended that against the wish of the plaintiff, the identity of interest of the two being diametrically opposed, there can be no transposition of a defendant as a plaintiff and the plaintiff cannot be asked to take a partner for continuing the suit against the defendant. It was further contended that the plaintiff has every right to compromise and to withdraw the suit and for that matter an intervener-defendant cannot be transposed unless in the suit certain rights or benefits have been conferred on the said defendant Learned counsel for the intervener-defendant, on the other hand, submitted that they want to continue the suit against the tenant as being the owner of the property and as the plaintiffs has no intention to prosecute the suit. Order 1 Rule 8 (5) Civil P. C., confers every power to the Court to transpose them as plaintiff. The transposed defendant shall have the right to amend the written statement and convert it into a plaint to continue the suit.
9. The law as to transposition of a defendant to the category of plaintiff is well settled. Where it is necessary for a complete adjudication of the question involved in the suit, parties may be added or transposed. But where by this Court's order, character of the suit may be altered by the addition or transposition of the intervener-defendant and the party sought to be transposed does not wish to adopt the plaintiff's case transposition can never be permitted. Similarly, if the claims are inconsistent it would not be fair for the original defendant to be asked to fight the newly added plaintiff. (See Ram Prasad v. Mt. Fulia, AIR 1964 Pat 508, Ramaswami Reddi v. Deivasigamani Pillai, AIR 1947 Mad 395). It is also well settled that Court cannot compel the original plaintiff to proceed with the suit and the intervener-defendant or any other defendant cannot be allowed to complain against such order. The said principle is also applicable to a compromise between the plaintiff and any one or more of the defendants in the suit. But where there is an affinity or identity of interests between the plaintiff and any one of the defendants the plaintiff has not the absolute right to withdraw or compromise the suit with one of the defendants if an application on behalf of other defendants having an interest in the suit is made for their transposition to the category of plaintiffs. Withdrawal of suits is also being refused where some vested rights have devolved in favour of the defendant at the point of time when withdrawal is sought (See Ajita Debi v. Hossenara Begum, AIR 1977 Cal 59, R. Ramamurthi v. V. Rajeswararao, AIR 1973 SC 643, Basudeb Narayan v. Shesh Narayan, AIR 1979 Pat 73). The principle generally applies to a suit for partition where the plaintiff is not wholly dominus litis and the plaintiff cannot defeat the exercise of option to have a partition by other defendants by resorting to the device of withdrawing the suit. There being affinity and identity of interest in a suit for partition even if the plaintiff does not wish to prosecute that suit or to withdraw it the defendant or defendants can ask for being transposed to the array of plaintiff to have his or their share partitioned, Bearing in view the aforesaid rule of law I find that the case of the original plaintiff and that of the intervener-defendant is not only diametrically opposed as against the defendant-tenant but there is a serious dispute between themselves with respect to the property in question wherefrom defendant 1 is sought to be evicted. Their case against defendant 1 is wholly inconsistent with each other and they have no identity of interest in the suit. I fail to understand how the tenant-defendant can resist the two inconsistent cases of the two plaintiffs in a simple suit for eviction. The two plaintiffs cannot be permitted to get their case of title decided in a simple suit for eviction of defendant 1. They cannot be permitted to fight their own battle which would cause extreme prejudice to the original contesting defendant-tenant. I have purposely refrained from expressing my opinion as to the respective claim of the plaintiff with respect to the disputed property beyond observing that Gita Devi has received, as stated by the plaintiff in his affidavit, a sum of Rs. 29,000/-pursuant to a compromise petition filed before the Supreme Court on 30-3-86, whereas she has sold the property for a sum of Rs. 20,000/- to the intervener-defendant on 22-6-1980.
10. I am also not impressed by the argument of the learned counsel of the intervener-defendant that as the plaintiff is compromising the suit with defendant 1 it is necessary for the intervener-defendant to be arrayed as plaintiff to continue the suit for eviction. If the original plaintiff is compromising the suit with the defendant-tenant, the suit will be disposed of against the contesting defendant in terms of the compromise and would be dismissed so far as the case of intervener-defendant is concerned. This will in no way affect the intervener-defendant as the compromise decree would not be binding on him.
11. Further, the intervener-defendant is not prepared to continue the suit on the basis of the plaint of the plaintiff but he wants that he should be allowed to amend the written statement so as to make it a plaint to continue the suit. This will lead to an absurd result inasmuch as the contesting defendant will have to face two plaints in a suit which is unknown in law. I am of the firm view that where identity of interest of the original plaintiff and the defendant Sought to be transposed with respect to the disputed property is not same or similar or the cause of action of the two plaintiffs is not same or similar, and if the case of the two plaintiffs are inconsistent, transposition of a defendant to the category of plaintiff is impermissible in law. Further, if the defendants have not achieved certain vested interest or has not acquired any right in the suit itself which is sought to be jeopardised by the withdrawal or compromise of the suit, the compromise and withdrawal of the suit cannot be refused.
12. In the result, the petition is allowed with costs. Hearing fee Rs. 100/-. The order of the Court below is set aside.