Punjab-Haryana High Court
Ravi Kant Kapur vs Prem Parkash Talwar And Ors. on 1 March, 1995
Equivalent citations: (1995)110PLR384
JUDGMENT G.S. Singhvi, J.
1. This revision petition is directed against the order dated 1.9.1993 passed by the learned Sub Judge First Class, Amritsar, allowing an application filed by defendant Nos. 3 and 4 (respondent Nos. 4 and 5 in the revision petition) under Order 1, Rule 10 of the Code of Civil Procedure for their transposition as plaintiffs.
2. Reference to a few facts is necessary for proper appreciation of the contentions advanced by the learned counsel for the parties. Lala Rattan Chand Kapur, a philanthropist, created a trust know as "Rattan Trust (Registered) Katra Sher Singh, Amritsar". A trust-deed was executed on 28.3.1942. Originally, there were five trustee, a including Lala Rattan Chand Kapur, One of the clauses of the trust-deed provided that when any trustee is a partner or director of a firm or a company and the said firm or company becomes defaulter to the trust for any amount due to the trust on account of any debt etc, then such partner or director shall cease to be a trustee ipso facto.
3. Plaintiff-respondent Nos. 1 and 2 filed a suit in the Court of learned Sub Judge First Class, Amritsar, for declaration that defendant Nos. 1 and 2 (petitioner and respondent No. 3 herein) are no longer trustees of the Rattan Trust (Registered) Katra Sher Singh, Amritsar. Plaintiffs alleged that defendant Nos. 1 and 2 had committed various acts and omissions on account of which they were removed from the trusteeship in the meeting held on 12.8.1989. They were served with the notice of their removal. Despite this, defendant Nos. 1 and 2 did not desist from interfering in the affairs of the trust and were creating hurdles in the working of the trust. Claiming themselves to be the trustees, the plaintiffs pleaded that they had a right to protect the interest of the trust and for this purpose they had filed the suit for declaration. In the suit, Inderjit Kapur son of Rattan Chand Kapur and Vikram Kapur son of Inderjit Kapur were impleaded as defendant Nos. 3 and 4 with an allegation that they were not keen in taking proceedings against defendant Nos. 1 and 2. Immediately after service of the summons, defendant Nos. 3 and 4 (respondent Nos. 4 and 5 herein) jointly filed an application under Order 1, Rule 10 of the code of Civil Procedure for their transposition as plaintiffs on the ground that they had no clash of interest with the plaintiffs on the issue of the affairs of the trust. They alleged that if they were allowed to remain as defendants, the trial of the suit was likely to be delayed. Petitioner and respondent 3 filed a detailed reply to this application alleging that the same was mala fide. They asserted that the original plaintiffs had no locus standi to institute the suit because they were not the trustees and the suit was bound to be dismissed and in these circumstances there was no justification for transposition of defendant Nos. 3 and 4 as plaintiffs. In that reply, it was also alleged that the plaintiffs had deliberately suppressed the fact that by virtue of the judgment and decree passed by the City Civil Court, Bombay, in Suit Nos. 478 and 479 of 1979, defendant Nos. 1 and 2 (petitioner and respondent 3 in the revision petition) were appointed as life-trustees of the trust. Further allegation made in the application was that the applicants were aware of the fact that a suit had been filed in the Bombay High Court, bearing No. 198 of 1990 (Ravi Kant Kapur and Anr. v. Inderjit Kapur and Ors.). In that suit, notice of motion had already been issued by the Bombay High Court with an interim order restraining the defendants from disposing of the property or parting with possession or alienating or encumbering or transferring the property of the trust and assets thereof. The petitioner and respondent 3 pleaded that in order to create complication in the suit pending before the Bombay High Court, the plaintiffs had instituted suit in the Court at Amritsar and now the applicants had with an oblique motive sought their transposition as plaintiffs.
4. After considering the rival cases, learned Sub Judge First Class, Amritsar, allowed the application and ordered transposition of defendant Nos. 3 and 4 as plaintiffs in the suit.
5. First contention urged by Shri J.N. Kaushal, Senior Advocate, is that when there was a serious dispute about the locus standi of the original plaintiffs and it was clear that the suit filed by the original plaintiffs was liable to be dismissed, the trial Court did not have jurisdiction to order transposition of defendant Nos. 3 and 4 as plaintiffs. He argued that in the face of a clear objection raised by the petitioner and respondent 3 regarding the maintainability of the suit, the trial Court ought not to have ordered substitution of the defendants as plaintiffs. Second contention of Shri Kaushal is that when the City Civil Court, Bombay, has already passed decree in favour of the petitioner and respondent No. 3, and has declared them to be life trustees, there can be no justification for Allowing the original plaintiffs or the defendants to proceed with the suit instituted in the Court at Amritsar. He lastly argued that the plaintiffs-respondent Nos. 1 and 2 have instituted suit at Amritsar with a view to harass the petitioner and respondent No. 3 and, therefore, the trial Court should not have ordered impleadment of defendant Nos. 3 and 4 as the plaintiffs. In support of his argument, Shri Kaushal referred to the decision of Calcutta High Court in John Boisogomoff v. Manmatha Nath Mullick and Anr., AIR 1931 Calcutta 76.
6. Shri M.L. Sarin argued that the learned trial Court did have the jurisdiction to decide the application filed by the defendant Nos. 3 and 4 (respondent Nos. 4 and 5 herein) and it had also the discretion to accept the application for transposition of the defendants as the plaintiffs with a view to effectively and expeditiously decide the suit and that such order should not be interfered with by the High Court under Section 115 of the Code of Civil Procedure. Shri Sarin pointed out that the application for transposition was filed immediately after service of summons and before the filing of written statement by defendant Nos. 1 and 2 and, therefore, the petitioner cannot claim that a serious objection about the locus standi of the original plaintiffs had been raised by them. Shri Sarin also laid emphasis on the fact that no effective proceedings have been taken by the trial Court upto the date of filing of the application by defendant Nos. 3 and 4 and no prejudice has been suffered by the petitioner or respondent No. 3 on account of transposition of defendant Nos. 3 and 4 as plaintiffs. He relied on Bhupendra v. Rajeshwar, AIR 1931 Privy Council 162, Santuram Hari v. Trust of India Assurance Co., AIR 1945 Bombay 11, Rameswara Das Bavaji and Ors. v. Vuppuluri Purnachandra Rao, AIR 1958 Andhra Pradesh 494, and Maddanappa v. Chandramma, AIR 1965 SC 1812.
7. Order I, Rule 10 of the Code of Civil Procedure reads as under :-
"Order I: Parties to suits Rule 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 bonafide 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 or add parties:-
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 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."
8. A bare reading of the above-quoted provisions show that the Courts have been given wide powers to implead, to add, to substitute any other person as a plaintiff, if it is satisfied that the suit has been instituted in the name of wrong person as plaintiff or where it is doubtful whether the suit has been instituted in the name of right plaintiff through a bona fide mistake and that it is necessary to implead other person as plaintiff for the determination of real controversy. The Courts are also vested with power to strike out the names of any party from the array of plaintiffs or defendants whose presence is not necessary for deciding the suit. "Courts' power to order transposition of defendant as plaintiff has been considered in various decided cases, a few of which are being referred hereafter.
9. In Huges v. The Pump House Hotel Company, (1902) 2 KB. 485, King's Bench Division of the Court of Appeal interpreted Order XVI Rules 2 and 11 of the Judicature Act, 1873 and held:-
"Where an action has, through a bonafide mistake, been commenced in the name of the wrong person as plaintiff, the fact that the original plaintiff has no cause of action does not take away the jurisdiction of the Court to order the substitution of another person as plaintiff."
10. In Bhupendra v. Rajeshwar (supra), the Privy Council held as under:-
"The course of adding proforma defendants as co-plaintiffs should always be adopted- where it is necessary for a complete adjudication upon the questions involved in the suit and to avoid multiplicity of proceedings."
11. That was a case in which proforma defendants had asked that a decree should be passed in favour of the appellant. The Privy Council held that if there was a technical objection to this, the Court clearly had power at any stage of proceedings to remedy the defect under Order I, Rule 10 of the Code of Civil Procedure by adding the proforma defendants as co-plaintiffs with the appellant.
12. In Monghibai v. Cooverji Umersey, AIR 1939 Privy Council 170, the Privy Council followed the dictum of law laid down in Hughes v. The Pump House Hotel Company (supra) and observed:-
"One or more of several persons jointly interested can bring an action in respect of joint property and if their right to sue is challenged can amend by joining their co-contractors as plaintiffs if they will consent or as co-defendants if they will not.
Nor indeed would it matter that a wrong person had originally sued though he had no cause of action."
The Privy Council further held:-
"Once all the parties are before it the Court can make the appropriate order and should give judgment in favour of all the persons interested whether they be joined as plaintiffs or defendants."
13. That was a case in which a person executed mortgage in favour of a firm. Subsequently, some of the partners retired assigning their interest in favour of the remaining partners by an unregistered deed. The remaining partners brought a suit on the mortgage and as an objection was brought to the maintainability of the suit, the plaint was amended bringing on record the retiring partners as defendants. The Privy Council held that it would have been more satisfactory that the retiring partners should have been made as co-plaintiffs instead of co-defendants, but even otherwise as whole of the necessary parties were before the Court, appropriate relief could be granted.
14. In John Boisogomoff v. Manmatha Nath Mullick (supra) a Division Bench of Calcutta High Court held that application for transposition of defendant as a plaintiff at a late stage of the proceedings deserves to be rejected. In that case, suit was filed in 1926 by one Mr. Mullick claiming that he had taken title of the suit property under certain mortgages from one Nani Mohan Banerji. When the trial of the suit was coming to an end, one of the defendants made an application to be made as plaintiff. An application for amendment was also filed by the plaintiff. Both these applications were allowed by the trial Court. While reversing the final Judgment and decree passed by the trial Court, the Calcutta High Court observed that in the circumstances of that case the amendment should not have been allowed and the application of the defendant to be added as plaintiff should have been rejected. The Court observed:-
"In a suit against two defendants the plaintiff, without a fair title, in his plaint gave reasons why he had added defendant 2, and further stated that defendant 2 did not object to passing of the decree against defendant 1 alone. Then defendant 2 made an application to the Court to make him plaintiff and said that he was ready to adopt the plaintiffs plaint for the purposes of that suit alone and for obtaining a decree against defendant 1 and also that the plaintiff did not object to his being added as co-plaintiff.
Held : That under the said circumstances, no amendment in the pleadings should be allowed, but "the suit should be dismissed. Defendant 2, if he liked, might bring a separate suit against defendant 1, if so advised. It was for defendant 2 to say whether he would object or not, to the plaintiffs claim and whether he objected or not plaintiff had to show title in himself in order to succeed. Defendant 2 wanted to bargain with a man without title, to get a decree against defendant 1, and afterwards they might, if necessary, have a little fight between themselves. The plaintiff ought to have declared that he had no objection in joining the applicant as a co-plaintiff. Hence the application of defendant 2 should have been dismissed and so also the suit."
15. In Santuram Hari v. Trust of India Assurance Company (supra), Bombay High Court enunciated the principle of law regarding transposition of defendant as a plaintiff in the following words:-
"Although the original plaintiff might not be entitled to maintain the suit, it is competent to the Court exercising its discretion under 0.1, R.10 to transpose a party defendant to the place of the plaintiff, such a party being entitled to maintain the suit, and pass the decree in favour of the newly added plaintiff though in most cases the Court would not exercise its discretion in transposing defendants as party accrued by one of the defendants is likely to be taken away or defeated."
16. In Rameswara Das v. V. Purnachandra Rao (supra) a Division Bench of the Andhra Pradesh High Court held that the principle underlying Order 1, Rule 10, C.P.C. is to save honest plaintiffs from being*non-suited on a mere technical ground. The Division Bench pointed out two limitations on the exercise of powers under Rule 10, namely, that institution of the suit should have been under a genuine mistake, and that valuable right acquired by the other defendants should not be defeated. The Court clarified that the expression "valuable right" means a right other than a claim for rejection of the suit itself on the ground of institution by a wrong plaintiff.
17. In Maddanappa v. Chandramma (supra), their Lordships of the Supreme Court approved the principle laid down in Bhupendra v. Rajeshwar (supra). In the case before the Supreme Court, the plaintiff had sought partition of the suit property. The first defendant admitted the plaintiff's title to 1/2 share in the property and claimed a decree also in her own favour to the extent of remaining 1/2 share in the property. The Supreme Court observed that she could have also prayed for her transposition as a co-plaintiff and under Order 1, Rule 19(2), the Court could have transposed her as a co-plaintiff. Their Lordships further held that the power under Order I, Rule 10, C.P.C. ought to exercise by a Court for doing complete justice between the parties.
18. In Nishabar Singh v. Local Gurdwara Committee Manji Sahib, AIR 1986 Punjab & Haryana 402, this Court followed the law laid down by the Privy Council and the Supreme Court and observed that where the property was bequeathed to two religious institutions equally by will and Suit for possession was brought only by one institution with other institution being joined as defendant, the Court could transpose the defendant-institution as plaintiff and grant decree in its favour to avoid multiplicity of proceedings and to do complete justice between the parties. 19. A close scrutiny of the order passed by the learned Sub Judge in the light of the principle laid down by the Privy Council and the Supreme Court as well as by this Court clearly shows that the learned trial Court has not committed any jurisdictional error in accepting the application filed by defendant Nos. 3 and 4. The learned trial Judge has taken note of the argument advanced on behalf of defendant Nos. l and 2 about the lack of cause of action in favour of the original plaintiffs and observed that the issue regarding locus standi of plaintiffs was yet to be established and the issue regarding the validity of the resolution passed in the meeting held on 12.8.1989 was also required to be decided. It held that since defendant Nos. 3 and 4 had adopted the pleadings of the plaintiffs and, therefore, they could legitimately be added as plaintiffs. The learned trial Judge was conscious of the principle of law that if the transposition has the effect of taking away of valuable right, the same ought not to be allowed. The learned Sub Judge further held that by adding of defendants as plaintiffs, cause of action is not going to change and the defendant Nos. l and 2 were not going to lose any valuable right. The trial Court further observed that effect of the judgment rendered in the previous suits decided by the City Civil Court, Bombay, and the suit pending before the Bombay High Court could be considered during the trial and that the other defendants were entitled to take these objections in their written statement, which they were yet to file.
20. Learned counsel for the petitioner has not been able to show as to how the suit instituted by the original plaintiffs was not bonafide or that any valuable right accrued in favour of the petitioner and respondent No. 3 was going to be defeated by accepting of the application for transposition. His argument that original plaintiffs did not have cause of action and, therefore, the application for transposition should have been disallowed cannot be accepted in view of the decisions of the Privy Council and the Bombay High Court. Moreover, it is a case in which transposition of the defendants as the plaintiffs will go a long way for proper and effective adjudication of the controversy raised in the suit. Therefore, it cannot be said that any illegality has been committed by the trial Court or substantial failure of justice has been occasioned to the petitioner so as to warrant interference by this Court under Section 115 of the Code of Civil Procedure.
21. For the reasons mentioned above, the revision petition fails and it is hereby dismissed. Parties to bear their, own costs.