Orissa High Court
Amina Bibi vs Muni Bibi And Others .... Opp. Parties on 25 July, 2022
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No.382 of 2018
Amina Bibi ..... Petitioner
Mr.Soumya Mishra, Advocate
-versus-
Muni Bibi and others .... Opp. Parties
None
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 25.07.2022 5. 1. This matter is taken up through Hybrid mode.
2. None appears for the Opposite Parties at the time of call.
3. Although the matter is listed for orders for consideration of IA No.703 of 2022 for extension of interim order of stay and IA No.393 of 2018 for further order on stay, but Mr. Mishra, learned counsel for the Petitioner submits that the matter can be disposed of.
4. Petitioner in this CMP seeks to assail order dated 6th March, 2018 (Annexure-5) passed by learned Civil Judge (Senior Division), 1st Court, Cuttack in CS No.334 of 2012, whereby an application for transposition of Plaintiff No.3 (Petitioner herein) as a Defendant was refused.
5. Mr. Mishra, learned counsel for the Petitioner submits that the suit has been filed for partition of the suit property. During pendency of the suit, it came to the knowledge of Plaintiff No.3 that the suit has been filed without her consent. Neither her signature has been obtained on the Vakalatnama nor on the plaint itself. She also has a conflicting claim with other Plaintiffs. Hence, she filed an application for her Page 1 of 4 // 2 // transposition as a Defendant. The said application was rejected on the ground that the provisions under CPC do not permit a Plaintiff to be transposed as a Defendant. 5.1 Mr. Mishra, learned counsel further submits that Order 1 Rule 10(2) and Order XXIII Rule 1(A) CPC clearly stipulates that a Defendant can be transposed as a Plaintiff, but there is no bar under law to transpose a Plaintiff as a Defendant, as a Plaintiff, having a conflicting claim with co-Plaintiffs, cannot be compelled to continue to pursue the matter with them. Thus, for the ends of justice, Plaintiff No.3, who has conflicting claim with other Plaintiffs and has not either signed the Vakalatnama or the plaint should be transposed as a Defendant. 5.2 In support of his case, he relied on a decision in the case of Azgar Barid (Dead) by Legal Representatives and Others Vs. Mazambi alias Pyaremabi and Others, reported in (2022) 5 SCC 334, wherein at page-13, the Hon'ble Supreme Court held as under:-
"13. We will first deal with the objection of the appellant that since Plaintiffs 4 to 8, whose claim was denied by the trial court and who had not challenged the same by way of appeal, are not entitled to relief in the second appeal. This Court in Bhagwan Swaroop v. Mool Chand [Bhagwan Swaroop v. Mool Chand, (1983) 2 SCC 132] and P. Nalla Thampy Thera v. B.L. Shanker [P. Nalla Thampy Thera v. B.L. Shanker, 1984 Supp SCC 631] , has held that in a suit for partition, the position of the plaintiff and the defendant can be interchangeable. Each party adopts the same position with the other parties. It has been further held that so long as the suit is pending, a defendant can ask the court to transpose him as a plaintiff and a plaintiff can ask for being transposed as a defendant."
(emphasis supplied) In the case of R.Dhanasundari alias R. Rajeswari Vs. A.N.Umakanth and others, reported in (2020) 14 SCC 1, Page 2 of 4 // 3 // Hon'ble Supreme Court, while discussing the fact that Plaintiff Nos. 5 and 9 to 11 were transposed as Defendants, did not take any exception to the same and dismissed the appeal. In that view of the matter, he submits that learned trial Court has committed an error in dismissing the petition for transposition of Plaintiff No.3 as a Defendant.
6. Taking into consideration the submission made by learned counsel for the Petitioner and that the Plaintiff No.3 has conflicting claim with other Plaintiffs and she has not signed the plaint, this Court is of the considered opinion that keeping her as co-Plaintiff, will certainly make the suit not maintainable, as Plaintiffs having conflicting claim in the suit property cannot maintain the suit for partition. In Azgar Barid (supra), the Hon'ble Supreme Court, while dealing with a matter arising out a suit for partition, observed that a Defendant can be transposed as Plaintiff and the Plaintiff can also be transposed as a Defendant, as well. True it is that Order 1 Rule 10(2) and Order XXIII Rule 1 (A) CPC do not envisage transposition of a Plaintiff as a Defendant, but there is no prohibition under the CPC for transposition of a Plaintiff as a Defendant. In absence of any provision to the contrary, learned trial Court could have exercised power under Section 151 CPC to transpose the Plaintiff No.3 as a Defendant to maintain the suit.
7. None appears for the contesting Opposite Parties when the matter is called, although they are represented by learned counsel. In that view of the matter, this Court, in order to provide an opportunity to the Opposite Parties to contest the claim of the Plaintiff No.3/Petitioner, feels that the petition filed by Petitioner/Plaintiff No.3 under Annexure-3 for her Page 3 of 4 // 4 // transposition as a Defendant should be considered afresh giving the parties an opportunity of hearing.
8. While setting aside the impugned order dated 6th March, 2018 (Annexure-5) passed by learned Civil Judge (Senior Division), 1st Court, Cuttack in CS No.334 of 2012, this Court remits the matter back to learned trial Court to consider the application for transposition of Plaintiff No.3 as a Defendant afresh giving opportunity of hearing to the parties concerned.
9. The CMP is accordingly disposed of.
10. Interim order dated 22nd March, 2018 passed in Misc. Case No.393 of 2018 stands vacated.
Issue urgent certified copy of the order on proper application.
(K.R. Mohapatra) Judge s.s.satapathy Page 4 of 4