Rajasthan High Court - Jodhpur
Lrs Of Narendra Singh Bhati vs Lrs Of Fateh Singh Rathore & Ors on 28 January, 2014
Author: Arun Bhansali
Bench: Arun Bhansali
1
S.B. CIVIL FIRST APPEAL NO.342/2013
LRs of Shri Narendrasingh Bhati
Vs.
LRs of Fatehsingh & Ors.
Date of Order :: 28.01.2014
HON'BLE MR. JUSTICE ARUN BHANSALI
Mr. N.S. Charan, for the appellants.
Mr. M.R. Singhvi, Senior Advocate assisted by
Mr. Sandeep Shah, for the respondent Nos.1 to 4.
Mr. Muktesh Maheshwari, for the respondent No.6.
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Heard learned counsel for the parties on application filed by respondent No.6 seeking transposition as appellant in the present appeal.
It is, inter alia, indicated in the application that before the trial court the applicant was impleaded in the suit as legal representative of deceased Narendrasingh Bhati, who was plaintiff alongwith her brother and sister; while the present appeal has been filed by one of the sisters another appeal being S.B. Civil First Appeal No.349/2013 has been filed by the brother, and the interest of legal representative of respondent No.6 and the appellant are common and same; it would be just, proper and in the interest of justice that the applicant be transposed as appellant in the present appeal and the rights and interest of the other parties to the appeal are not going to be adversely affected in any manner.
Though, a reply to the application has been filed by the appellant, inter alia, indicating that without prejudice to her legal right and interest with the respondent No.6, the appellant does not have any objection to the impleadment and her transposition as a co-appellant.
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A reply has been filed by the respondent Nos.1 to 4, inter alia, indicating that the applicant was well aware about the decision in the case and filing of the appeal, but at that time did not chose to contest the appeal and did not file a separate appeal and was sleeping over her right and now cannot be permitted to take benefit of her own wrong to bypass the rigour of law of limitation by way of filing the present application. It is indicated that the rights of the respondents will be adversely affected if the applicant is permitted to be transposed as appellant. The applicant having chosen not to file an appeal separately, cannot be permitted to now file the present application and force the respondent to face one more appellant in the present litigation.
It is submitted by learned counsel for the applicant that the rights of the appellant and respondent Nos.1 to 4 shall not be prejudiced by the fact of her transposition as co-appellant and, therefore, the application may be allowed.
While, learned counsel for the appellant has reiterated the stand taken in the application, learned counsel for the respondent Nos.1 to 4 has vehemently opposed the application. It was, inter alia, submitted that the application does not disclose any reason for the transposition; the transposition would be apparently barred by limitation and the said application has been filed merely to over come rigour of the Limitation Act.
I have considered the rival submissions.
Apparently, the provision relating to transposition of a respondent as appellant is envisaged only by provisions of Rule 1A of Order XXIII CPC where a suit is withdrawn or abandoned 3 by a plaintiff and a defendant applies to be transposed as plaintiff under Rule 10 of Order I CPC, the application can be considered by the Court for the reasons indicated in the said Rule.
Order I Rule 10 CPC deals with impleadment of parties and confers power on the Court to strike out or add parties at any stage of the proceedings, either suo moto or on application of either party on such terms as may appear to the Court to be just. It would be appropriate to reproduce Rule 10 of Order I CPC, which reads thus:
"10. Suit in name of wrong plaintiff. - (1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.
(2) Court may strike out or add parties. - The Court may at any stage of the proceedings, either upon or without the application or 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.
(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.
(4) Where defendant added, plaint to be amended. - Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.
(5) Subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877), section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons."4
Though Sub-rule (5) of Order I, Rule 10 CPC has not been amended, the present Act & pari materia provision to Indian Limitation Act, 1877 & Section 22 are Limitation Act, 1963 and Section 21.
Hon'ble Supreme Court while considering the issue of transposition in an appeal in Kiran Tandon v. Allahabad Development Authority & Anr.: (2004)10 SCC 754, observed and held as under:
"4. Shri Sunil Gupta, learned Senior Counsel for the claimant has at the very outset assailed the order of the High Court whereby the application moved by the State of U.P. for transposing it as the appellant in the appeals preferred by ADA was allowed. In the appeals preferred by ADA against the judgment and award of the Additional District Judge Smt. Kiran Tandan (widow of the original claimant Ravindra Kumar Tandon) was arrayed as Respondent 1 and the State of U.P. was arrayed as pro forma Respondent 2. The applications for transposition were supported by the affidavit of Tahsildar Sadar, Allahabad wherein it was averred that an objection had been raised on behalf of the State of U.P. before the Additional District Judge that the acquired land was State land and therefore the entire compensation amount should be awarded to the State of U.P. The land had been acquired for construction of residential flats by ADA which is a State within the meaning of Article 12 of the Constitution and is therefore competent to raise any or all of the objections on behalf of the State Government. Therefore, in order to avoid any technical objection and in the interest of justice it was expedient that the State of U.P. may be transposed as Appellant 2 in the appeal. The High Court held that as ADA and State of U.P. were disputing the title of the claimant to receive the entire amount of compensation and the State of U.P. having already been impleaded as pro forma respondent in the appeal, the interest of justice required that it should be transposed as the appellant in the appeal. Sub-rule (2) of Order 1 Rule 10 CPC lays down that 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. It is well settled that the court has power under sub-rule (2) Order 1 Rule 10 CPC to transfer a defendant 5 to the category of plaintiffs and where the plaintiff agrees, such transposition should be readily made. This power could be exercised by the High Court in appeal, if necessary, suo motu, to do complete justice between the parties. This principle was laid down by the Privy Council in Bhupendra Narayan Sinha Bahadur v. Rajeswar Prosad Bhakat and has been consistently followed by all the courts. In fact, the pleas raised by ADA and the State of U.P. were identical and in order to effectuate complete adjudication of the question involved in the appeal it was in the interest of justice to transpose the State of U.P. as Appellant 2 in the appeal. We are, therefore, of the opinion that no exception can be taken to the course adopted by the High Court in transposing the State of U.P. as the appellant in both the appeals."
(Emphasis Supplied) In the above judgment the Hon'ble Supreme Court recognized power under Sub-rule (2) of Order I Rule 10 CPC to transfer a defendant to the category of plaintiffs and ruled that where the plaintiff agrees, such transposition should be readily made and this power could be exercised by the High Court in appeal, if necessary, suo motu, to do complete justice between the parties.
In view of the above law laid down by the Hon'ble Supreme Court, the exercise of power under Order I, Rule 10 (2) CPC in an appeal can be exercised by this Court on an application or suo moto and the requirement, apparently is where the plaintiff/appellant agrees and the observations of the Supreme Court relevant in the present case are that 'such transposition should be readily made'.
Even otherwise, under Section 107 CPC the Appellate Court have the same powers as are conferred on courts of original jurisdiction and as such provision of Order I, Rule 10 CPC applies to appellate jurisdiction as well.
So far as the objection raised by learned counsel for the respondent Nos.1 to 4 regarding limitation is concerned, it would 6 be noticed that Sub-rule (5) of Order I, Rule 10 CPC prescribes that the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons subject to the provisions of Limitation Act and its Section 21.
Besides, the said provision, which prescribes applicability and starting point of limitation for the purpose of Limitation Act qua impleadment of a defendant, Sub-rule 1A of Order XXIII also does not provide for starting point of limitation on transposition. The reason is not far to seek. Section 21 of the Limitation Act, 1963 reads thus:
"21. Effect of substituting or adding new plaintiff or defendant. - (1) Where after the institution of a suit, a new plaintiff or, defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party:
Provided that where the court is satisfied that the omission to include a new plaintiff or defendant was due to a mistake made in good faith it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date.
(2) Nothing in sub-section (1) shall apply to a case where a party is added or substituted owing to assignment or devolution of any interest during the pendency of a suit or where a plaintiff is made a defendant or a defendant is made a plaintiff."
While Sub-section (1) provides that where after the institution of a suit, a new plaintiff or, defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party. However, Sub-section (2) provides that nothing in Sub-section (1) shall apply to a case where a party is added or substituted owing to assignment or devolution of any interest during the pendency of a suit or where a plaintiff is made a defendant or a defendant is made a plaintiff. 7
In that view of the matter, the objection regarding the limitation sought to be raised by learned counsel for the respondent Nos.1 to 4 has no substance.
In view of the fact that respondent No.6 was also a plaintiff alongwith the appellant and the respondent No.5 has already preferred a separate appeal, it would be in fitness of things and appropriate to transpose the respondent No.6 as appellant No.2.
In that view of the above and the fact that the appellant, apparently has no objection to the transposition, the application filed by the respondent No.6-applicant is allowed. She is permitted to be transposed as appellant No.2. Amended cause title filed is taken on record, the same be placed at appropriate place by the office.
List on 13.02.2014 alongwith S.B. Civil First Appeal No. 349/2013.
(ARUN BHANSALI), J.
PKS-60