Calcutta High Court (Appellete Side)
Sri Nitai Dutta & Ors vs Munmum Mitra (Bisui) & Ors on 14 September, 2018
Author: Biswajit Basu
Bench: Biswajit Basu
1 19,SL,Ct.21 14.09.2018 AJ.
CO No. 3424 of 2017 Sri Nitai Dutta & Ors.
-Vs-
Munmum Mitra (Bisui) & Ors.
Mr. Partha Pratim Roy, Mr. Malay Bhattacharya, Mr. Subhrajyoti Ghosh.
... for the petitioners.
None appears on behalf of the opposite parties inspite of service. Affidavit-of-service filed in Court today be kept on record.
This revisional application under Article 227 of the Constitution of India is at the instance of some of the plaintiffs in a suit for declaration of title upon declaration that the deed of gift described under schedule 'Ka' of the plaint is void and is directed against Order No.10 dated April 03, 2017 passed by the learned Civil Judge (Junior Division), Bishnupur, Bankura in Title Suit No. 108 of 2015.
The plaintiffs filed an application in the suit under Order 1 Rule 10(2) of the Code of Civil Procedure thereby praying that the plaintiff nos. 5 to 8 may be transposed to the category of defendants, as the said plaintiff are now supporting the defendants.
The learned trial Judge by the order impugned rejected such application on the ground that the plaintiffs have procured the signature of all plaintiffs, but they never appeared before the Court enabling the Court to ask them personally whether they are willing to continue the suit as plaintiffs or 2 they have ceased to exist and also on the ground that the plaintiffs at the time of filing of the suit with their full mind had prayed for decree of declaration and injunction in respect of the suit property jointly and at this moment, out of these eight plaintiffs, if four of them become the defendants, the suit property will remain the same and if the instant suit succeeds eventually that time only the plaintiff nos. 1 to 4 will be entitled to get the decree of declaration, so at that time what will be the fate of the right of the other plaintiffs sought to be transposed in the category of defendants.
The aforesaid considerations are totally irrelevant for the purpose of transposition of some of the plaintiffs in the category of defendants inasmuch as in the event the suit succeeds, the deed under challenge will be declared as void and in such situation, the plaintiff Nos. 5 to 8 transposed to the category of defendants will also enjoy the fruits of the said decree.
Mr. Roy, learned advocate appearing on behalf of the petitioners submits that power of transposition is always with the Court and in the appropriate case such power should be exercised. In support of such contention, he relies on the case of Janadas Vs. Vedanayagam reported in 2004(3) KLT 425. In the said decision, it has been held that plaintiff can be transposed as defendant.
The Court has always the power to order transposition of the parties for the purpose of complete adjudication of the question involved in the lis. It has been held by the Judicial Committee of the Privy Council in the case of Raja Bhupendra Narayan Singh Bahadur vs. Rajeswar Prasad Bhakat reported in 3 35 CWN 870 that the Court clearly had power at any stage of the proceeding to remedy the defect under Order 1, Rule 10 of the Civil Procedure Code by adding the pro forma defendants as co-plaintiffs with the appellants. Such a course should, in their Lordships' opinion, always be adopted where it is necessary for a complete adjudication upon the questions involved in the suit and to avoid multiplicity of proceedings.
The said proposition of law has been followed by the learned Single Judge of this Court in the case of Sencose Food Products Pvt Ltd. Vs. RajKumar Sen and Ors. reported in 2003(3) ICC 370 In the case of Gulam Mohd. Vs. Ahad Sheikh reported in AIR 1952 (J&K) 33 it has been held that if the plaintiff intends to withdraw from the suit Court may not dismiss the suit but will transpose the defendants who have vested rights as plaintiffs and the plaintiffs as defendants in the suit and allow the suit to proceed. The relevant portion of the paragraph No. 5 of the said reported decision is reproduced below:-
"................In these suit, if the plaintiff intends to withdraw from the suit the Court may not dismiss the suit merely because the plaintiff has withdrawn from the suit, it will transpose the defendants who have vested rights as plaintiffs and the plaintiffs as defendants in the suit and allow the suit to proceed....................."
On consideration of the materials-on-record and the proposition of law laid down in the aforementioned reports this Court is of the opinion that transposition of some of the plaintiffs into the category of defendants would 4 not embarrass the Court or delay the trial of the suit and, in fact, no prejudice would be caused to the contested defendants if such transposition is made. The veracity of the impugned deed can be challenged by one of the heirs of the donor. The plaintiff nos. 1 to 4, who are now interested to continue with the suit, are entitled to continue the same, by transposing the plaintiff No. 5 to 8 in the category of defendants in the suit.
In view of the aforesaid discussion made above the order impugned is set aside.
The revisional application being C.O. 3424 of 2017 is allowed. No order as to costs.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(Biswajit Basu, J.)