Telangana High Court
S. Mubarak Begum vs Mrs. Azizunnisa Begum, And 8 Others on 18 January, 2022
THE HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY
CRP No.663 of 2020
ORDER:
1. This Civil Revision Petition is filed under Article 227 of the Constitution of India assailing the order dated 13.02.2020 in IA No.2 of 2020 in LGOP No.1054 of 2016 on the file of the learned VI Additional District and Sessions Judge (Fast Track Court), Ranga Reddy at Kukatpally.
2. The petitioner/respondent No.8 has filed IA No.2 of 2020 under Order-23, Rule-(1)(a) read with Order-1, Rule-10 (2) and read with Section 151 of Civil Procedure Code (for short 'CPC') to transpose her as applicant No.3 from respondent No.8.
3. This application was resisted by the petitioners 1 & 2, who filed a detailed counter. The Court below on careful analysis of the facts and the legal position dismissed the application. Aggrieved by the same, this civil revision petition is filed on the following grounds:
i) The trial Court ought to have allowed IA No.2 of 2020 permitting the petitioner to transpose herself as applicant No.3 from respondent No.8;
ii) The trial Court fell in error in dismissing the application holding that the transposition is not permissible under Order-23, Rule-4 of CPC except when plaintiff abandoned any suit or part of claim or withdraws the suit or part of claim; and Page 2 of 6 AVRJ CRP No.663 of 2020
iii) The trial Court ought to have appreciated the fact that in IA No.579 of 2018 there is a specific averment in the petition that the applicants in LGC are trying to mislead the Court and knock away the entire petition schedule property as well as they are trying to negotiate with the land grabbers to get enriched by colluding with them.
4. Heard learned counsel for the revision petitioner and the respondents. Perused the material placed on record.
5. The respondent No.8 has filed the application in IA No.2 of 2020 under Order-23, Rule-(1)(a) read with Order-1, Rule-10 CPC seeking transposition from respondent No.8 as the applicant No.3. The Court below dismissed this application with an observation that as rightly contended by the learned counsel for the respondents as per the provisions of Order-23 (4) of CPC where the plaintiff abandons any suit or part of claim under sub-rule (1) or withdraws from a suit or part of a claim without the permission referred to sub-rule (3), the defendant can ask for transposition. Rule-1 (a) specifically provides that when a suit is withdrawn or abandoned by a plaintiff under Rule- 1 and the defendant applies to be transposed as a plaintiff under Rule- 10 of Order-1 CPC, the Court may consider such application, having due regard to the question whether the applicant has a substantial question to be decided as against any other defendant.
6. In the instant case, there is no such allegation that the petitioners 1 & 2 are not contesting the matter or that they are trying Page 3 of 6 AVRJ CRP No.663 of 2020 to abandon or withdraw the suit claim. In such circumstances, the trial Court has rightly concluded that the question of transposition of respondent No.8 as applicant no.3 does not arise. The petitioners in LGC No.1054 of 2006 are resisting this application and it is nobody's case that the petitioners in LGC are either trying to withdraw or abandon their claim. Though an allegation has been made against the petitioners that they are trying to negotiate with the land grabbers and to sell the petition schedule property, it is always open to the respondent No.8 to resist any such attempt and for that purpose, at this stage the respondent No.8 need not be transposed as the petitioner No.3 in the LGC.
7. The learned counsel for the respondent No.8 seeks to submit that in a Land Grabbing Case, if the petitioner is arrayed and continued to be shown as respondent only, he will be treated as a land grabber and he will not be given a fair opportunity to prove his case and for that purpose, he may be transposed as applicant No.3. I am afraid to accept this contention of the learned counsel for the simple reason that the petitioners 1 & 2 have initiated the proceedings, there is a conflict of interest between the petitioners 1 & 2 and the respondent No.8. The petitioners 1 & 2 being dominus litis' are entitled to choose with whom or against whom they intended to fight the litigation.
8. It is not the case of the respondent No.8 that the petitioners have withdrawn or abandoned the suit claim and accordingly he is Page 4 of 6 AVRJ CRP No.663 of 2020 praying the Court for transposition as one of the petitioners. It is also not the case of the respondent No.8 that he has substantial question to be decided against the other respondents in the absence of petitioners 1 & 2. The law is well settled that the plaintiff and defendants with conflicting interests cannot be transposed as one of the plaintiffs unless and until the plaintiff withdraws from the suit. Before allowing a party to be transposed as plaintiff, the Court may insist that it should be prima facie satisfied about the benefits of the applicant, plausibility of the applicant's claim and the genuineness of interest in the litigation. Transposition of defendant as a plaintiff can be made only when the defendant has some interest in common with the plaintiff. A person whose interest is adverse to the plaintiff cannot be permitted to be transposed as a plaintiff. More so, a third party cannot be ordered to be added as a co-plaintiff without the original plaintiff's consent except when the original plaintiff in a representative capacity wants to abandon the cause by withdrawing the suit and such withdrawal would adversely effect third parties also.
9. The learned counsel for the petitioner/respondent No.8 relied on the following decisions:
1) Bhupendra Narayan Sinha Bahadur v. Rajeswar Prosad Bhakat and others1;
2) P.S. Mohan Sha and another v. P.S. Parameswaran
Sha2; and
1
AIR 1931 Privy Council 162
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AVRJ
CRP No.663 of 2020
3) R. Dhanasundari alias R. Rajeswari v. A.N.
Umakanth and others3.
10. I have carefully perused the principles laid in the above decisions. In Bhupendra Narayan Sinha Bahadur's case (1 supra), it was held by the Privy Council under what circumstances a defendant can be transposed or added as a co-plaintiff and held that if it is necessary for complete adjudication upon questions involved in the suit to avoid multiplicity of proceedings, may be added. In P.S. Mohan Sha's case (2 supra), the Madras High Court considered the application for transposition when there is no conflicting interest between the plaintiffs and the party proposed to be transposed as a co-
plaintiff and that the nature of character of the suit would not undergo any metamorphic change. Whereas, in R. Dhanasundari's case (3 supra), the Hon'ble Apex Court considered such application transposing the defendants 3 to 6, as plaintiffs after satisfying that the plaintiffs sought permission to withdraw the suit. Thus, the facts of the cases in the reported decisions relied by the learned counsel for the petitioner/respondent No.8 are distinguishable from the facts of the case on hand and the principles laid in the above decisions are not applicable to the facts of the present case.
11. For the reasons stated above, I do not find any jurisdictional error committed by the Court below and the order impugned does not warrant any interference by this Court.
2 Laws (Mad) 2009 (4) 226 3 (2020) 14 SCC 1 Page 6 of 6 AVRJ CRP No.663 of 2020
12. In the result, the Civil Revision Petition is dismissed confirming the order impugned dated 13.02.2020 in IA No.2 of 2020 in LGOP No.1054 of 2016. However, in the circumstances of the case, there shall be no order as to costs. Miscellaneous applications, if any pending in this revision petition shall stand closed.
_______________________________ A. VENKATESHWARA REDDY, J.
Date: 18.01.2022 Isn