Punjab-Haryana High Court
Om Parkash And Anr. vs Parshotam Lal And Ors. on 28 March, 2005
Equivalent citations: (2005)140PLR702
JUDGMENT M.M. Kumar, J.
1. This is defendants petition filed under Article 227 of the Constitution praying for setting aside order dated 22.2.2005 passed by the Civil Judge (Jr. Division), Amloh allowing an application under Order I Rule 10 C.P.C. granting permission to respondent No. 1 Parshotam Lal to be transposed as plaintiff who was a co-defendant in the civil suit filed by Rajinder Kumar, respondent No. 2.
2. Brief facts of the case are that Rajinder Kumar, respondent No. 2 who is nephew of the petitioner filed Civil suit No. 671 dated 20.2.2001/22.9.2003 for partition of the suit property by metes and bounds (Annexure P.3). It has been claimed that the property in dispute was ancestral in nature and he alongwith respondent No. 1 Parshotam Lal (who was impleaded as defendant No. 3) has share in the property. The suit was contested by filing the written statement by the defendant-petitioners in which stand has been taken that the shops were constructed by their common ancestor who was in fact absolute owner. Respondent no. 1 Parshotam Lal, who was also impleaded as co-defendant with the petitioners in the suit, filed an application for being transposed as plaintiff.
3. The application was opposed by the defendant-petitioners by taking the stand that the defendant-petitioner and respondent No. 1 are brothers. It was disclosed that respondent No. 1 had earlier filed Civil Suit No. 409 dated 22.. 1996 seeking a declaration to the effect that the shop situated at Loha Bazar, Mandi Gobindgarh which had been transferred in favour of defendant-petitioner No. 1 by their father Piara Lal vide sale deed dated 22.1.1996 was illegal, inoperative, without consideration and was not binding upon him. Therefore, a prayer was made for setting aside the sale deed in the suit on 22.7.1996 (Annexure P.1). After filing of written statement framing of issue, respondent No. 1 had withdrawn the suit on 14.6.2004 without seeking even permission to institute a fresh suit on the same cause of action. A copy of the order had been placed on record as Annexure P.2. After taking into consideration the averments made by respondent No. 1 in that suit and the stand of defendant-petitioners, learned Civil Judge allowed the application. The operative part of the order reads as under:
"... That no prejudice would be caused to any party by transposing the applicant/ defendant No. 3 as a plaintiff in this case because the present suit is a suit for partition of the suit property fully detailed and described in the heading of the plaintiff left by the deceased Piara Lal. This Court agrees with the contentions raised by the learned counsel for the applicant that in case plaintiff withdraws his case then the applicant would not be entitled to raise his claim in the suit for partition despite the fact that in the partition suit the defendants are also the plaintiffs and the plaintiffs are the defendants and in the instant case t here is only one plaintiff and if t he plaintiff withdraws his suit then the applicant would not be entitled for any relief. The contention of the learned counsel for the respondent- plaintiff that the applicant had already filed a suit for declaration which was dismissed as withdrawn and the applicant is not entitled to any relief is also devoid of merits as the defendant-respondents are entitled to file the written statement and the plea of resjudicata or Order 2 Rule 2 and the provisions of Order 23 CPC cannot be invoked at this stage and no opinion can be formed at this stage while transposing the applicant as a plaintiff in this case. The perusal of written statement on file further reveals that the applicant has almost admitted the case of the plaintiff and by transposing the applicant as a plaintiff would be rather beneficial to the respondent...."
4. A perusal of the impugned order shows that the learned Civil Judge has left open the question of resjudicata or the plea of Order II Rule 2 C.P.C. alongwith other related questions.
5. After hearing the learned counsel I am of the considered view that respondent No. 1 who was impleaded as a defendant in the suit has been permitted to be transposed as plaintiff under Order 1 Rule 10 C.P.C. It is admitted fact that respondent No. 1 had admitted in the written statement all the averments made by Rajinder Kumar, plaintiff-respondent No. 2. As early as in 1931 the Privy Council in Bhupender Narayan Sinha v. Rajeswar Prasad Bhakat and Ors., A.I.R. 1931 P.C. 162 had taken the view that in order to avoid multiplicity of litigation a proforma defendant should always be joined as co-plaintiff which may otherwise be necessary for complete adjudication of the question involved in the suit. The afore-mentioned principle of joining the proforma defendant as co-plaintiff has been extended to even ordinary defendant to become a co-plaintiff by the Supreme Court in the case of R.S. Maddanapa v. Chandramma, which has been followed by this Court in the case of Nishabar Singh v. Local Gurdwara Committee Manji Sahib, . In that case the property was bequeathed to two religious institutions equally by Will. One of the institutions had filed suit for possession of its share and the other institution was joined as a defendant. It was held that the Courts can always transpose defendant as a plaintiff and could grant decree in its favour to avoid multiplicity of litigation and to do complete justice between the parties.
6. On facts the position is some what similar. There is litigation between brothers and other close family relations over the property left by common ancestor. Respondent No. 1 may or may not have share in the property but that question would not call for determination at this stage because that would be a 1egal dispute between the parties. Moreover what would be the effect of filing of an earlier suit by respondent No. 1 which was got dismissed as withdrawn has also been expressly kept open by the learned Civil Judge. The transposition of respondent No. 1 who was impleaded as defendant would not cause any prejudice to the rights of the defendant-petitioner especially when it is remembered that in a partition suit the defendants are the plaintiffs and vice-versa. It is for this reason that ordinarily procedure followed in such suits in case of withdrawal by the plaintiff is to seek option of one of the defendant to be transposed as plaintiff. On precedents as well as on principle there is no legal infirmity in the impugned order warranting interference of this Court under Article 227 of the Constitution. Therefore, there is no merit in the petition. Dismissed.
7. Nothing observed herein above shall be construed as an expression of opinion on the merits of the case and the trial Court shall not be influenced by it.