Patna High Court
Md. Muzahid vs John Wilson Zedak And Anr. on 5 July, 1988
Equivalent citations: AIR1989PAT2, AIR 1989 PATNA 2, (1988) PAT LJR 857
ORDER Satyeshwar Roy, J.
1. Defendant No. 2 is the petitioner. Opposite Party No. 1-plaintiff filed Title Suit No. 206 of 1982 praying therein for decree for specific performance of agreement dt. 9-9-1979 said to have been entered into by and between him and opposite party No. 2 (defendant 1).
2. When the agreement was executed, opposite party No. 1 was occupying the property in question as a tenant month to month. According to the petitioner, opposite party No. 2 had entered into an agreement with him on 21-5-1979 to transfer the suit property in his favour. On 8-1-1983 opposite party No. 2 executed and registered a sale deed in favour of the petitioner. The petitioner gave notice to opposite party No. 1 about the transfer in his favour and asked opposite party No. 1 to vacate the suit property. As opposite party No. 1 did not vacate the suit property, the petitioner filed Title Suit No. 13 of 1983 for his eviction.
3. In the written statement opposite party No. 1 disclosed about Title Suit No. 206 of 1982 filed by him. The petitioner filed an application for adding him as defendant in Title Suit No. 206 of 1982. That was allowed.
4. The parties led evidence in Title Suit No. 206 of 1982 and the suit was fixed for argument. On 25-7-1985. argument of petitioner was heard in part and the case was adjourned to 26-7-1985 for further hearing. However, on that date, opposite party No, 1 as plaintiff filed an application for allowing him to withdraw Title Suit No. 206 of 1982 as opposite party No. 2 had transferred the suit property to him by a registered sale deed dt. 28-7-1984. The petitioner filed his objection and prayed that he may be transposed as plaintiff.
4-A. The Court below by order dt. 11-2-1986 allowed the prayer of opposite party No. 1 for withdrawal of the suit and refused the prayer of the petitioner. It may be mentioned that opposite party No. 2 (defendant No. 1 in Title Suit No. 206 of 1982) did not contest the suit. In this civil revision application, the petitioner has challenged the validity of order dt. 11-2-1986 passed by the " Court below. Opposite Party No. 2 has not appeared.
5. Order 23, Rule 1(1) of Civil P.C. (for short 'the Code') provides that at any time after institution of the suit, the plaintiff may against all or any of the defendants abandon his suit or abandon part of his claim. There is a proviso with which we are not concerned in this case. We are not concerned with other provisions of Rule 1.
6. Ordinarily plaintiff may abandon a suit or abandon all his claim or part of it as a matter of right without permission of Court: reference may be made of Hulas Rai Baij Nath v. Firm K. B. Bass and Co., AIR 1968 SC 111. It was, however, contended on behalf of the petitioner that since opposite party No. 1 wanted to defeat the right to the petitioner in the property in suit, he should not be allowed to withdraw the suit and in view of Rule 1-A of Order 23, the petitioner should be transposed as plaintiff and opposite party No. 1 should be transposed as defendant 2 in Title Suit No. 206 of 1982. Learned counsel appearing on behalf of opposite party No. 1 submitted that as opposite party No. 2 has executed the sale deed in favour of opposite party No. 1 and as opposite party No. 1 has got the relief which he prayed for in the suit, opposite party No. 1 has right to withdraw the suit. It was also urged that the petitioner cannot be transposed as plaintiff.
7. There are decisions of Supreme Court and different High Courts including this Court (to notice a few) Hulas Rai Baij Nath (supra), R. Ramamurthi Aiyar v. Rajeshwararao, AIR 1973 SC 643; Basudeb Narayan v. Shesh Narayan, AIR 1979 Pat 73; Debi Chand v. Prabhu Lal, AIR 1926 All 582; Loke Nath Saha v. Radha Govirida Saha, AIR 1926 Cal 184. which lay down when a defendant may be transposed as plaintiff if the latter files application under Order 23, Rule 1(1). In a suit for partition, if the plaintiff wants to withdraw the suit, the defendant, if he wants to prosecute the suit should be transposed as plaintiff. The same is the position with regard to suit for accounts by a partner. There is no difficulty in appreciating this proposition as in such suits, the position of all the parties is ihat of plaintiff. Again if a preliminary decree has been passed, the plaintiff should not be allowed to withdraw the suit, and if a right has already vested in defendant, the plaintiff shall not be allowed to withdraw the suit.
8. It will thus be noticed that in spite of the language of Order 23. Rule 1 (1) as interpreted by the Supreme Court in M/s. Hulas Rai Baij Nath's case (AIR 1968 SC 111), Courts held that in all cases right of plaintiff to withdraw a suit cannot be said to be absolute. These decisions were rendered before the amendment of the Code in 1976.
9. In 1976 the Code was amended. Rule IA was inserted in Order 23 and provision was made therein that ''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 1, 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."
10. With reference to Rule 1-A, it was contended on behalf of the petitioner that in view of this Rule, now in all cases where plaintiff wants to withdraw the suit and one of the defendants applies for transposition, Court shall have to decide the matter keeping in view this provision and not merely Rule 1(1) of Order 23. It was urged that the petitioner has raised a substantial question in his written . statement which requires to be decided as against opposite party No. 2-defendant 1. On behalf of opposite party No. 1 it was urged that insertion of Rule 1-A has not enlarged the power of the Court than what was laid down by the Supreme Court and High Courts before the amendment regarding cases when such transposition may be made. Reliance was placed in the case of Jethiben v. Maniben, AIR 1983 Guj 194 : (1983) 2 Civil LJ 370. The Court below also relied on this judgment and judgments rendered under unamended Code in refusing the prayer of the petitioner.
11. As noticed above, the petitioner claimed the suit property on the basis of the sale deed executed by opposite party No. 2 on 8-1-1983 in pursuance of agreement dt. 25-6-1979. According to opposite party No. 1, opposite party No. 2 executed the sale deed in his favour on 28-7-1984 in pursuance of agreement dt. 9-9-1979. It will thus appear that both the agreements to sale and sale deed executed by opposite party No. 2 in favour of the petitioner with regard to the suit property were earlier than those executed by opposite party No. 2 in favour of opposite party No. 1.
11-A If the transfer made by opposite party No. 2 in favour of the petitioner on 8-1-1983 is valid, the former had no subsisting title in the property which he could have transferred on 28-7-1984 to opposite party No. 1. The substantial question involved is the right of opposite party No. 2 to transfer the suit property to opposite party No. 1 after the former had already transferred the suit property to the petitioner.
12. It appears from the order sheet of the Court below that before hearing argument of the parties on 27-5-1985 the issues were recast. Besides other issues, the following issues were framed :--
(1) Whether agreement for sale dt. 9-9-1979 executed by defendant No. 1 in favour of plaintiff is valid, legal and enforceable ?
(2) Whether plaintiff had knowledge that Khan Bahadur Habibur Rahman constituted attorney of defendant No. 1 had executed agreement for sale dt. 21-5-1979 in favour of defendant 2 ?
(3) Is defendant 2 a bona fide purchaser of suit property and agreement dt. 21-5-1979 and sale deed dt. 8-1-1983 executed in his favour legal and valid ?
13. In the suit, the petitioner had disclosed the factum of transfer by opposite party No. 2 to him. Evidence was led on the issues noticed above. For deciding the suit, it was necessary for the Court to record its findings with regard to the two agreements and the effect of the sale deed dated 8-1-1983 on the right of opposite party No. 1 to claim specific performance of contract dt. 9-9-1979. If the sale deed dt. 8-1-1983 is valid, the Court below cannot decree the suit for specific performance. When this was the position, sale deed dt. 28-7-1984 was brought into being. The controversy, before sale deed dt. 28-7-1984 between the parties was validity of sale deed dt. 8-1-1983 in favour of the petitioner i.e. right of opposite party No. 2 to execute the sale deed. Opposite Party No. I could have succeeded only if he could successfully challenge the sale deed dt. 8-1-1983. At all stages, the substantial question was validity of the sale deed, be it in favour of the petitioner or in favour of opposite party No. 1. The Court below in refusing the prayer of the petitioner completely missed the issues retrained on 25-7-1985 and raised the question of misjoinder of issues, conflicting claims of the parties etc. In this suit, these grounds were not available to the Court below.
14. It was, however, contended on behalf of opposite party No. 1 that the transfer was made by opposite party No. 2 in favour of the petitioner during the pendency of Title Suit No. 206 of 1982 and, therefore, it was hit by lis pendens. In this civil revision application, we are not required to record any finding on the correctness or otherwise of the submission made on behalf of opposite party No. 1. Having regard to the fact that the petitioner claims that on the basis of the sale deed dt. 8-1-1983, he has vested right in the property in suit on 28-7-1984 when the sale deed in favour of opposite party No. 1 was executed in my opinion in view of Rule 1-A, the petitioner should be transposed as plaintiff in Title Suit No. 206 of 1982 and opposite party No. 1, who is plaintiff therein, should be transposed as defendant No. 2.
15. In Jethiben's case (AIR 1983 Guj 194) (supra I. a learned single Judge of Gujarat High Court held that notwithstanding insertion of Rule 1-A. the law laid down by Courts prior to the insertion still holds good. According to learned Judge, Rule 1-A has not "changed the character and requirement of transposition", and only if a defendant has interest common to the plaintiff, such defendant may be transposed as plaintiff.
16. It must be presumed that Parliament was aware of the interpretation given by Court to Order 23, Rule 1(1), Judge made law laying down cases when a defendant may be transposed was already there. What then was the necessity for Parliament to insert Rule 1-A ? The Code is designed to facilitate justice and further its ends. It is for doing justice between parties. The Judge made law does not provide for continuance of a suit for adjudication of disputes inter se defendants as such when plaintiff wants to withdraw from a suit or abandon it. In such a case, a defendant, for establishing his claim, was required to file a fresh suit. One of the reasons for inserting Rule 1-A is to do away with multiplicity of suit, to shorten litigation. Rule l-A provides guideline to Court when application for withdrawal or abandonment of suit is filed by the plaintiff and one of the defendants files application for transposition as plaintiff.
17. Rule 1 was substituted by Act 104 of 1976. In the old rule, both the words 'withdraw' and 'abandon' were used. In the new Rule 1, in Sub-rule (1) of Rule 1, the word used is 'abandon' and Sub-rule (3) of Rule 1, the word used is 'withdraw'. Rule 1-A applies to both cases of abandonment and withdrawal. The right of plaintiff to abandon the suit under Rule 1(1) has been left unfettered, but in a case where Court is of opinion that substantial question is to be decided as against any of the other defendants, the defendant who may apply for transposition ought to be transposed as plaintiff and the original plaintiff ought to be transposed as a defendant. The right of plaintiff to walk out of a suit by abandoning it or withdrawing from suit has been curtailed. Before insertion of Rule 1-A, there was no question of transposing a defendant as plaintiff, if the dispute was inter se defendants. But now it is specifically provided that Court shall take into consideration whether there is substantial question to be decided between the defendants inter se. For all these reasons, with respect, I am unable to accept the interpretation of Rule 1-A as held in Jethiben's case (AIR 1983 Guj 194).
18. When prayer of a defendant to transpose him as plaintiff may be allowed will depend on the facts of each case. In the present case, in the written statement, the petitioner asserted his vested right in the suit property on the basis of the sale deed executed by opposite party No. 2 on 8-1-1983. It appears from the record that the agreement to sale and the sale deed on the basis of which the petitioner claims were executed by the constituted to attorney of opposite party No. 2. If the Court held on the basis of evidence that the sale deed was valid, no decree for specific performance could have been passed in favour of opposite party No. 1. That surely was a substantial question which was required to be decided in the suit and in my opiniqn, that still remained a substantial question after opposite party No. I filed the application to allow him to withdraw the suit and petitioner filed application for his transposition.
19. In the result, this application is allowed, the order passed by the Court below on 11-2-1986 in Title Suit No. 206 of 1982 is set aside so far the prayer of the petitioner to transpose him is concerned. The petitioner shall be transposed as plaintiff in thaf title suit and opposite party No. 2 shall be transposed as defendant 2 in that suit.
20. In view of this transposition, it may be necessary for opposite party No. 1 to bring on record the sale deed dt. 28-7-1984 said to have been executed by opposite party No. 2 in favour of opposite party No. 1. The Court below shall give opportunity to him if prayed for. It shall thereafter dispose of the suit in accordance with law. The Court below shall be entitled to mould the relief. The parties shall bear their own cost.