Madras High Court
Kannuperumal And Anr. vs Suseela, Mentally Retarded Person, ... on 17 May, 2004
Equivalent citations: 2005(4)CTC11, (2005)3MLJ263
ORDER S. Sardar Zackria Hussain, J.
1. The plaintiff 2 and 4 in O.S. No. 72 of 1995 on the file of the Additional Sub Court, Tindivanam are the revision petitioners. The revision is directed against the dismissal of I.A. No. 353 of 2003 filed by the revision petitioners under Order 1, Rule 10, C.P.C. to transpose the plaintiffs 1 and 3 as defendants 4 and 5 in the suit. The petition was dismissed on 18.2.2004.
3. The suit was resisted in the written statement filed by the third defendant on 20.4.1995 denying the agreement of sale said to have been executed by the defendants 1 to 3 and further stating that the said agreement of sale has been forged. It is further stated that inasmuch as the first defendant is a mentally retarded person, the agreement of sale executed by her is invalid and not binding.
4. The plaintiffs 2 and 4 filed I.A. No. 353 of 2003 on 23.7.2003 stating in the affidavit that during trial of the suit their brother, the first plaintiff was examined as P.W.1, and cross-examined by the defendants 1 to 3. It is further stated that the balance of sale price amount for the suit agreement has been deposited by the plaintiffs 1 and 3 in the fixed deposit in the State Bank of India, Tindivanam and the fixed deposit receipt has also been marked as Ex.A-3 through P.W.1, the first plaintiff and the amount has been deposited by all the plaintiffs and as such, the amount has not been deposited in the fixed deposit exclusively by the plaintiffs 1 and 3.
5. On the side of the defendants 1 to 3, after examination of D.W.1, since the witness D.W.2 examined in part was not further examined and when it was posted for further examination of witness on the side of the defendants on 22.7.2003, P.W.1 Jayaraman appeared in Court and informed that he is not willing to continue the suit and also requested for refund of the amount deposited. Though the fourth plaintiff also came to the Court, he did not come inside the Court and therefore, the counsel for the plaintiffs has withdrawn the vakalath. The plaintiffs 2 and 4, viz., the revision petitioners appeared and took time till 25.7.2003 and filed petition I.A. No. 353 of 2003 on 23.7.2003, subject matter of this revision to transpose the plaintiffs 1 and 3 as defendants 4 and 5 in the suit.
6. The petition I.A. No. 353 of 2004 was opposed in the counter filed by the second defendant that the petition is filed only to delay the suit proceedings and further stating that inasmuch as the plaintiffs 1 and 3 are not supporting the revision petitioners/plaintiffs 2 and 4, the petition to transpose the plaintiffs 1 and 3 as the defendants 4 and 5 will not lie and the plaintiffs 2 and 4 have to withdraw the suit.
7. In the counter filed by the 4th respondent, viz., the first plaintiff, it is denied that he and the 5th respondent joined hands with the defendants 1 to 3 and stating that there have been strained relationship between the plaintiffs and there was also partition suit between them and if the suit for specific performance is decreed, then there will be difficulty in partitioning the property. The plaintiffs 1 and 3 decided not to enforce the agreement of sale and to proceed with the suit. Accordingly, they informed their advocate to pay the balance amount equally to all the plaintiffs. After cancelling the vakalath, the junior to the said advocate, is now appearing for the plaintiffs 2 and 4 and has filed this petition I.A. No. 353 of 2003.
8. The trial Court accepting the case of the respondents 4 and 5/plaintiffs 1 and 3 in refusing to transpose the plaintiffs 1 and 3 as defendants 4 and 5, ultimately dismissed the petition. The order is under challenge in this revision.
9. The learned counsel for the revision petitioners/plaintiffs 2 and 4 vehemently contended that inasmuch as the respondents 4 and 5 joined as the plaintiffs 1 and 3 along with the revision petitioners/plaintiffs 2 and 4 for specific performance of sale agreement dated 20.3.1995 executed by the defendants 1 to 3 and after commencement of trial and examination of the first plaintiff as P.W.1 and when the suit was posted for examination of further witnesses on the side of the defendants 1 to 3, since the plaintiffs 1 and 3 have informed the Court that they are not willing to continue the suit and sought permission to withdraw the amount deposited by all the plaintiffs in the Court towards balance sale price amount, it would be just and proper, if the plaintiffs 1 and 3 are transposed as the defendants 4 and 5, since they have been sailing with the defendants 1 to 3. The learned counsel further submitted that inasmuch as the respondents 4 and 5/plaintiffs 1 and 3 are acting detrimental to the interest and rights of the revision petitioners/plaintiffs 2 and 4 that accrued under the sale agreement dated 20.3.1995, necessarily they have to be transposed as the defendants 4 and 5. The learned counsel also argued that the respondents 4 and 5 by joining hands with the respondents 1 to 3/defendants 1 to 3 cannot deny the rights of the revision petitioners/plaintiffs 2 and 4 accrued under the sale agreement, inasmuch as it is admitted by the respondents 4 and 5/plaintiffs 1 and 3 in filing the suit for specific performance of the agreement of sale and also admitted the fixed deposit receipt in the names of the plaintiffs 1 to 4 towards payment of balance sale price amount to the defendants 1 to 3 and the first plaintiff also gone into witness box as P.W.1 supporting the case of the plaintiffs.
10. The Honourable Supreme Court had occasion to deal with the issue in Mukesh Kumar v. Col. Harbans Waraiah, , and held at page 179 thus:
"Section 21 of the Limitation Act provides that wherever on 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 is so made a party. However, if Court is satisfied that 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. Sub-section (2) thereof makes it very clear that these provisions would not apply to a case where a party is added or substituted owning to assignment or devolution of any interest during the pendency of the suit or where plaintiff is made a defendant or a defendant is made a plaintiff. Section 21 has no application to cases of transposition of parties. Since transposition also involves addition of a plaintiff or a defendant, as the case may be, into the suit as originally filed, Sub-section (2) of Section 21 of the Limitation Act applies only to those cases where the claim of the person transposed as plaintiff can be sustained on the plaint as originally filed or where person remaining as a plaintiff after the said transposition can sustain his claim against the transposed defendant on the basis of the plaint as originally filed. For Sub-section (2) to apply all that is necessary is that suit as filed originally should remain the same after the transposition of the plaintiff and there should be no addition to its subject matter. Where a suit as originally filed is properly framed with the proper parties on record the mere change of a party from array of defendants to that of plaintiffs under Order 1, Rule 10 of the Civil Procedure Code will not make him a new plaintiff and will not bring the case within this Section and in such a case Sub-section (4) will not apply. For instance, where one of the plaintiffs refusing to join as plaintiff was first made a defendant and thereafter transposed as a plaintiff, he is not a new plaintiff."
This Court in Ponnuswami Gounder v. Boyan and Ors., , following the decision of the Hon'ble Supreme Court reported in Jahar Roy v. Premji Bhimji, , has held as follows:
"Where the contract was in favour of more than one person and if some of them do not want to specifically enforce the contract and therefore not willing to join as plaintiffs, the others could file a suit for specific performance of contract impleading those who are not willing, as defendants and a person cannot be prevented from filing a suit merely because he is only a joint promisee and the other promisees have refused to join him in filing the suit."
"The plaintiffs in the present case have deposited the entire consideration payable under the agreement to reconvey the property transferred to defendant No. 1 under the sale deed. The specific performance of the agreement therefore could not be denied to the plaintiffs merely on the ground that the joint promisees arrayed as defendants 2 and 3 have refused to join as plaintiffs or that they do not want the conveyance. The plaintiffs would be entitled to get a conveyance of the entirety of the property and on its execution rights of plaintiffs and other promisees/defendants in whose favour the agreement was executed will have to be worked out."
Both the above said decisions are relied on by the learned counsel for the revision petitioners/plaintiffs 2 and 4.
11. The learned counsel for the respondents 1 to 3/defendants 1 to 3 argued that inasmuch as the plaintiffs 1 and 3/respondents 4 and 5 are not willing to continue and proceed with the suit and since it is claimed by the plaintiffs that the agreement of sale dated 20.3.1995 was executed by the defendants 1 to 3 in their favour, the remaining plaintiffs, viz., the plaintiffs 2 and 4 alone cannot maintain the suit and they can only withdraw the suit and they cannot be permitted to transpose the plaintiffs 1 and 3 as defendants 4 and 5 and to continue the suit.
12. There is no force in the argument advanced as such by the learned counsel for the respondents 1 to 3/defendants 1 to 3 since, the plaintiffs have filed the suit for specific performance of agreement of sale claiming that the defendants 1 to 3 executed the sale agreement dated 20.3.1995 in favour of the plaintiffs 1 to 4, who are brothers, agreeing to convey the suit property for Rs. 1,20,000 and also received a sum of Rs. 20,000 as advance at the time of agreement of sale and to execute the sale deed after receiving the balance of sale consideration of Rs. 1,00,000 within five months. The plaintiffs 1 to 4 also filed the suit on 3.4.1995. After the stiff resistance made by the defendants 1 to 3 in their written statement, the parties went on trial and the first plaintiff also examined as P.W. 1 on the side of the plaintiffs, who has spoken the case of the plaintiffs with regard to the suit agreement and also marked Ex.A-3, the fixed deposit receipt, as per which the plaintiffs 1 to 4 deposited a sum of Rs. 1,00,000 towards balance sale consideration in the State Bank of India, Tidivanam and thereafter, after examination of D.W.1 on the side of the defendants 1 to 3 and since D.W.2 examined in part was not available for further cross-examination and when the suit was posted for further examination of witnesses on the side of the defendants 1 to 3, the plaintiffs 1 and 3 informed the Court through the first plaintiff that they are not willing to continue the suit and sought permission to withdraw the amount deposited towards balance of sale consideration, which made the counsel, who appeared for the plaintiffs 1 to 4, to withdraw the vakalath. Thereafter, the petition I.A. No. 353 of 2003, subject matter of this revision has been filed to transpose the plaintiffs 1 and 3 as defendants 4 and 5. Though the said petition was opposed by the plaintiffs 1 and 3 in the counter filed in I.A. No. 353 of 2003, that since previously there was dispute between the plaintiffs 1 to 4 in dividing the properties in which connection there was also a partition suit and therefore, if the suit is decreed for specific performance, there will be unnecessary complication in dividing the suit property and they did not choose to appear in this revision and to contest. Therefore, the only contention raised by the respondents 1 to 3/defendants 1 to 3 is that inasmuch as it was alleged that the agreement was executed by the defendants 1 to 3 in favour of the plaintiffs 1 to 4, the suit cannot be decreed in part for specific performance favouring the plaintiffs 2 and 4 and as such, the suit has to be withdrawn. The position is settled by the judgment of this Court in Ponnuswami Gounder v. Boyan and Ors., (cited supra) and also by the dictum rendered by the Hon'ble Supreme Court in Mukesh Kumar v. Col Harbans Waraiah, (cited supra) that in such case, the remaining plaintiffs are entitled to a decree for specific performance. It follows, the plaintiffs 1 and 3, who are not supporting the case of the plaintiffs 2 and 4 and after the first plaintiff was examined as P.W.1 supporting the case of the plaintiffs and also admitted all those facts in the counter filed in I.A. No. 353 of 2003, subject matter of this revision, have to be transposed as defendants 4 and 5 for effective and complete adjudication to settle all the questions involved in the suit. Inasmuch as already the plaintiffs 1 and 3 joining hands of the plaintiffs 2 and 4 have filed the suit for specific performance and also went on with trial by examining the first plaintiff as P.W.1, who deposed supporting the case of the plaintiffs and they also marked the fixed deposit receipt Ex.A-3 and they have not chosen to withdraw the suit, the plaintiffs 2 and 4 are entitled to continue the suit for specific performance in respect of the plaintiffs, viz., plaintiffs 2 and 4, by transposing the plaintiffs 1 and 3 as defendants 4 and 5. In case the plaintiffs 1 and 3 seek to withdraw the money deposited by them, it is open to the plaintiffs 2 and 4 to proceed with the trial of the suit for specific performance and for decree by paying the entire sale consideration. With that view, the order of the trial Court in refusing to transpose the plaintiffs 1 and 3 as defendants 4 and 5 being improper and erroneous is liable to be set aside.
13. In the result, this Civil Revision Petition is allowed. No costs. The order dated 18.2.2004 in I.A. No. 353 of 2003 in O.S. No. 72 of 1995 by the Additional Sub Court, Tindivanam is set aside. Since the suit is pending from 1995 and the evidence is also almost over, the Additional Sub Court, Tindivanam is directed to dispose the suit by August, 2005. Consequently, the petition C.M.P. No. 13588 of 2004 is closed.