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Hasmat Hussain vs Zahid Hussain & Ors on 23 April, 2014

Author: Mungeshwar Sahoo

Bench: Mungeshwar Sahoo

                    IN THE HIGH COURT OF JUDICATURE AT PATNA
                                Civil Writ Jurisdiction Case No.10250 of 2011
                 ======================================================
                 Hasmat Hussain
                                                                       .... .... Petitioner/s
                                                    Versus
                 Zahid Hussain & Ors
                                                                      .... .... Respondent/s
                 ======================================================
                 Appearance :
                 For the Petitioner/s     :   Mr. Pramod Man Bansh
                 For the Respondent/s       : Mr.
                 ======================================================
                 CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR
                 SAHOO
                 ORAL ORDER

4   23-04-2014

Heard learned counsel Mr. Pramod Manbansh on behalf of the defendant no.2-petitioner and learned counsel Mr. Madhurendra Kumar for the respondent no.2.

2. This application under Article 227 of the Constitution of India has been filed by the defendant no.2- petitioner against the order dated 17.02.2010 passed by the learned Subordinate Judge-IV, Begusarai in Title Suit No.117 of 2002 whereby the learned court below rejected the application filed by the present petitioner for being transposed as plaintiff in the suit.

3. The learned counsel for the petitioner submitted that the stand of the plaintiff and this petitioner is same, therefore, if the petitioner will be transposed as plaintiff, no prejudice will be caused to anyone. Secondly, the learned counsel submitted that the plaintiff is not taking any interest and is not doing Pairvi in the suit, therefore, also it is desirable that the defendant no.2- Patna High Court CWJC No.10250 of 2011 (4) dt.23-04-2014 2 petitioner be transposed as plaintiff. The learned counsel further submitted that it is partition suit, therefore, the position of this petitioner is also same as that of the plaintiff but the learned court below wrongly rejected the application filed by the petitioner observing wrongly that in the written statement the petitioner stated that it is a suit for declaration of title. The learned counsel for the petitioner relied upon 1988 P.L.J.R. 857 and 2006 (4) P.L.J.R. 750.

4. On the other hand, the learned counsel appearing on behalf of the respondents submitted that in the said suit an application was filed by the petitioner under Order 23 Rule 1A of the Code of Civil Procedure. According to the learned counsel because for some dates no Hazri or Pairvi was done by the plaintiff, it will not be a case of transposition and, therefore, the petitioner cannot be transposed as plaintiff in the suit.

5. Order 23 Rule 1A of the Code of Civil Procedure reads as follows:

1-A. When transposition of defendants as plaintiffs may be permitted.- Where a suit is withdrawn or abandoned by a plaintiff under rule 1, and a defendant applies to be transposed as a plaintiff under rule 10 of Order I, the court shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants.

6. In view of this provision when the suit is withdrawn or abandoned by the plaintiff under Rule 1, the defendant may apply for being transposed as plaintiff. Order 23 Rule 1 of the Code of Civil Procedure provides that at any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim. In the present case, admittedly the plaintiff is not abandoning the suit. So far withdrawal of the suit is concerned also, the plaintiff never prayed for withdrawal of the suit.

7. From perusal of the order sheet filed by the petitioner which has been annexed as Annexure to this writ application, it appears that for some dates no Hazri has been filed. In my opinion, only because for some dates the plaintiff has not filed Hazri, it cannot be said to be a ground for being transposed.

8. So far the decision relied upon by the learned counsel for the petitioner, i.e. 1988 P.L.J.R. 857 is concerned, it has been decided in that case also that the defendant may apply for transposition whenever the plaintiff abandons his claim or withdraws the suit. So far the other decision, i.e. 2006 (4) P.L.J.R. 750 is concerned, it is not relevant in the present case because the right of the transposed plaintiff has been defined in the said decision. Here, the question of transposition is being considered. Patna High Court CWJC No.10250 of 2011 (4) dt.23-04-2014 4

9. In the above facts and circumstances of the case, there is no question of transposition of the defendant as plaintiff arises. Accordingly, this writ application is dismissed.

10. However, if the plaintiff will abandon the suit or will withdraw the suit, the petitioner may approach the court concerned.

(Mungeshwar Sahoo, J) Harish/-