Orissa High Court
Laxindra Manahira vs Sanjaya Palia And Others .... Opp. ... on 15 March, 2023
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No.1228 of 2022
Laxindra Manahira .... Petitioner
Mr. Sourav Suman Bhuyan, Advocate
on behalf of Mr. Bibekananda Bhuyan, Advocate
-versus-
Sanjaya Palia and others .... Opp. Parties
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 15.03.2023 3. 1. This matter is taken up through Hybrid mode.
2. Petitioner in this CMP seek to assail the order dated 26th October, 2022 (Annexure-5) passed by learned Senior Civil Judge, Boudh in CS No.95 of 2018, whereby allowing an application filed by the Defendant No.4/Opposite Party No.7, learned trial Court allowed him to be transposed as one of the Plaintiffs.
3. Mr. Bhuyan, learned counsel for the Petitioner submits that the suit is filed for partition. Petitioner/Defendant No.1 has been described as a stranger to the family. Petitioner/Defendant No.1 has also filed written statement stating that he has interest in the suit property. The Defendant No.4 did not file any written statement within the time stipulated. As such, she was debarred from filing the written statement. In order to patch up the lacunae, the Defendant No.4 in connivance with the Plaintiffs- Opposite party Nos.1 to 4 filed an application under Order 1 Rule 10 (2) read with Order XXIII Rule 1-A CPC to transpose her as Plaintiff No.5 in the suit. The Defendant No.1-Petitioner Page 1 of 1 // 2 // raised serious objection to the same stating that since the Plaintiffs are contesting the suit and they have not yet abandoned their claim in the suit, the Defendants cannot be transposed as Plaintiffs. Without considering his objection in its proper perspective, learned trial Court holding that the Plaintiffs have no objection for transposition of Defendant No.4 as Plaintiff No.5, allowed the application. Hence, this CMP has been filed.
4. Mr. Bhuyan, learned counsel for the Petitioner relied upon a decision in the case of R. Dhanasundari @ R. Rajeswari
-v- A. N. Umakanth and others reported in (2020) 14 SCC 1 in which Hon'ble Supreme Court held as under:-
"11. As per Rule 1-A ibid., in the eventuality of plaintiff withdrawing the suit or abandoning his claim, a pro forma defendant, who has a substantial question to be decided against the co-defendant, is entitled to seek his transposition as plaintiff for determination of such a question against the said co-defendant in the given suit itself. The very nature of the provisions contained in Rule 1-A ibid. leaves nothing to doubt that the powers of the Court to grant such a prayer for transposition are very wide and could be exercised for effectual and comprehensive adjudication of all the matters in controversy in the suit. The basic requirement for exercise of powers under Rule 1-A ibid. would be to examine if the plaintiff is seeking to withdraw or to abandon his claim under Rule 1 of Order 23 and the defendant seeking transposition is having an interest in the subject-matter of the suit and thereby, a substantial question to be adjudicated against the other defendant. In such a situation, the pro forma defendant is to be allowed to continue with the same suit as plaintiff, thereby averting the likelihood of his right being defeated and also obviating the unnecessary multiplicity of proceedings.".
He, therefore, submits that the case of Defendant No.4 does not fall within the scope of Order XXIII Rule 1-A CPC, as the Plaintiffs are neither withdrawing the suit nor abandoning their claim. Thus, the prayer of Defendant No.4 at this stage for being Page 2 of 4 // 3 // transposed as Plaintiff No.5 is not sustainable. Hence, he therefore prays for setting aside the impugned order.
5. The Defendant No.4-Opposite Party No.7 being the only contesting party to this CMP, notice was issued only on her. Although AD from contesting Opposite Party No.7 has not yet returned, but tracking report of the Postal Department confirms delivery of such notice. In that view of the matter, notice on Opposite Party No.7 is treated to be sufficient.
6. Considering the submission of Mr. Bhuyan, learned counsel for the Petitioner and on perusal of record, it reveals that Defendant No.4-Opposite Party No.7 had filed petition (Annexure-3) under Order I Rule 10(2) read with Order XXIII Rule 1-A CPC for her transposition as Plaintiff No.5 to the suit. It also appears from the impugned order that Plaintiffs-Opposite Party Nos.1 to 4 have not raised any objection to the same. It is also not the case of the Petitioner that the Plaintiffs and Defendant No.4 have a conflicting claim in the suit. It appears from the record that Plaintiffs and Defendant No.4 have a similar claim in the suit property. Thus, transposition of Defendant No.4-Opposite Party No.7 as Plaintiff No.5 will in no manner prejudice the Petitioner-Defendant No.1. The ratio in the case of R. Dhanasundari (supra) has no application to the case at hand as the law laid down therein deals with a situation when the Plaintiff abandons claim or part of it and Defendant seeks to be transposed as Plaintiff in the suit, which is not the eventuality in the instant case. It, however, appears that the application for transposition was filed under Order I Rule 10(2) read with Order XXIII Rule 1-A CPC. But the contents of the petition under Annexure-3 do not make out a case of Page 3 of 4 // 4 // abandonment of claim by the Plaintiffs. Nomenclature of a petition is not the determining factor to consider the case of the applicant. It is the subject matter read with the prayer in the petition, which is relevant for consideration. The subject matter in the petition under Annexure-3 purely makes out a case under Order I Rule 10(2) CPC. It is submitted by learned counsel for the Petitioner that Defendant No.4-Opposite Party No.7 had not filed her written statement within the stipulated time. As such she was precluded from filing written statement. In order to patch up the lacunae, such a novel tactics has been adopted by Defendant No.4. This Court is not persuaded by such submission, as by transposition of Defendant No.4 as co- Plaintiff, the effect of non-filing of written statement by the Defendant No.4-Opposite Party No.7 will not be taken away. As a co-plaintiff, she will sail the same boat with the other Plaintiffs without propounding an independent case of her own. The Plaintiffs and Defendant No. 4 do not have a conflicting claim. In that view of the matter, this Court finds no infirmity in the impugned order.
7. Accordingly, the CMP being devoid of any merit stands dismissed.
8. Interim order dated 21st December, 2022 passed in IA No.1283 of 2022 stands vacated.
(K.R. Mohapatra) Judge s.s.satapathy Page 4 of 4