Punjab-Haryana High Court
Baldev Singh & Ors vs Vitnam Singh & Anrs on 10 September, 2014
Author: Inderjit Singh
Bench: Inderjit Singh
Civil Revision No.1603 of 2013 (O&M) 1
214
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Revision No.1603 of 2013 (O&M)
Date of decision: 10.09.2014
Baldev Singh and others
...Petitioners
Versus
Vitnam Singh and another
...Respondents
CORAM: HON'BLE MR. JUSTICE INDERJIT SINGH
1. Whether Reporters of Local Newspapers may be
allowed to see the judgment?
2. Whether to be referred to the Reporters or not? Yes.
3. Whether the judgment should be reported in the
Digest?
Present: Mr. Bikramjit Arora, Advocate,
for the petitioners.
Mr. Satish Jaswal, Advocate,
for the respondents.
****
INDERJIT SINGH, J.
Petitioners Baldev Singh and others have filed this revision petition under Article 227 of the Constitution of India for setting aside the impugned order dated 11.02.2013, passed by learned Additional Civil Judge, (Senior Division), Tarn Taran, whereby an application filed under Order 1 Rule 10 read with Section 151 of Code of Civil Procedure by the respondent-plaintiff was allowed.
Notice of motion was issued and respondents appeared through their counsel and contested the petition.
I have heard learned counsel for the parties and have VANDANA VERMA 2014.09.22 11:46 I attest to the accuracy and integrity of this document Civil Revision No.1603 of 2013 (O&M) 2 gone through the record.
From the record, I find that Vitnam Singh-plaintiff filed a suit against Ajit Singh, Rachhpal Singh, Baldev Singh and Raj Kaur- defendants for declaration to the effect that the transfer deed dated 27.02.2009 executed by defendant No.1 in favour of defendants No.2 and 3 is null and void, ineffective and inoperative qua the rights of the plaintiff, without consideration, result of collusiveness between defendants No. 1 to 3 and does not pass any right, title or interest in favour of defendants No.2 and 3 and the same is having no effect upon the rights of the plaintiff and defendant No.4 regarding the inheritance of the said property.
Plaintiff filed an application under Order 1 Rule 10 read with Section 151 CPC. In this application, it is stated that plaintiffs- Vitnam Singh and defendant Rashpal Singh and Baldev Singh are the sons of Ajit Singh, who is defendant No.1 in the case while Raj Kaur-defendant No.4 is the daughter of Ajit Singh. Raj Kaur- defendant No.4 had filed a counterclaim along with her written statement against her co-defendants and that counterclaim was rejected by the this Court on the ground that the same is not maintainable against the other defendants. Therefore, the applicant had prayed that she be allowed to be transposed as plaintiff in the present case and the plaintiffs have no objection regarding the same.
This application was contested by the defendants. Defendants/present petitioners filed the reply taking preliminary objections that the application is not maintainable. It is mainly stated in the reply that Raj Kaur cannot be transposed as a plaintiff. VANDANA VERMA 2014.09.22 11:46 I attest to the accuracy and integrity of this document Civil Revision No.1603 of 2013 (O&M) 3
The learned Additional Civil Judge, (Senior Division), Tarn Taran, vide order dated 11.02.2013, allowed the application and impleaded defendant No.4 as plaintiff. It is stated by the Additional Civil Judge, (Senior Division), Tarn Taran in his order that defendant No.4-Raj Kaur admitted the claim of the plaintiff in challenging the sale deed effected by defendant No.1 in favour of defendants No.2 and 3. Applicant-Raj Kaur has also an equal interest in the subject matter of the present suit. Therefore, she is entitled to contest the same along with the plaintiffs. It is also held in the order that no harm would be caused to the interest of the defendants/respondents if applicant is transposed as a plaintiff in the present case specifically when the plaintiff has consented to the same. Therefore, the application of the applicant was allowed and she was ordered to be transposed as plaintiff in the present case.
Learned counsel for the present petitioners argued that Raj Kaur cannot be transposed as plaintiff. It is permissible only if suit is withdrawn or abandoned under Order 23 Rule 1 (a). He argued that in the present case, there was neither abandonment nor withdrawal therefore, defendant cannot be transposed as a plaintiff. Learned counsel for the petitioners cited judgment passed by Kerala High Court in Abraham Vs. Antony Mathew, 2007(5) RCR (Civil)
522. I have gone through this cited judgment and the same having distinguished facts will not apply in the present case as it is under Order 23 Rule 1 (a) whereas in the present case the application has been filed under Order 1 Rule 10 read with Section 151 CPC. He also cited judgment passed by this Court in Amar Nath alias Amar VANDANA VERMA 2014.09.22 11:46 I attest to the accuracy and integrity of this document Civil Revision No.1603 of 2013 (O&M) 4 Chand Vs. Milkhi Ram and others 1983 PLR 440. I have gone through this cited judgment and the same also having distinguished facts will not apply in the present case as it relates to the adoption and not dealing with the question under Order 1 Rule 10.
On the other hand, learned counsel for the respondents cited judgment passed by Hon'ble Supreme Court in Kiran Tandon Vs. Allahabad Development Authority and another 2004 (3) RCR (Civil) 3. In para No.4, the Hon'ble Supreme Court has held as under:-
"xxx Therefore, in order to avoid any technical objection and in the interest of justice it was expedient that the State of U.P. may be transposed as appellant No.2 in the appeal. The High Court held that as the ADA and State of U.P. were disputing the title of the claimant to receive the entire amount of compensation and state of U.P. having already been impleaded as proforma respondent in the appeal, the interest of justice required that it should be transposed as appellant in the appeal. Sub-rule (2) of the Order 1 Rule 10 lays down that 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 all the questions involved in the suit, be added. It is well settled that the Court has power under Sub-rule (2) Order 1 Rule 10 Civil Procedure Code to transfer a defendant to VANDANA VERMA 2014.09.22 11:46 I attest to the accuracy and integrity of this document Civil Revision No.1603 of 2013 (O&M) 5 the category of plaintiffs and where the plaintiff agrees, such transposition should be readily made. This power could be exercised by the High Court in appeal, is necessary, suo motu to do complete justice between the parties. This principle was laid by the Privy Council in Bhupendra Narayan Sinha V.Rajeshwar Prosad, AIR 1931 PC 162 and has been consistently followed by all the Courts. In fact the pleas raised by the ADA and State of U.P. were identical and in order to effectuate complete adjudication of the question involved in the appeal it was in the interest of justice to transpose State of U.P. as appellant No.2 in the appeal. We are, therefore, of the opinion that no exception can be taken to the course adopted by the High Court in transposing the State of U.P. as appellant in both the appeals.
A perusal of the law laid down by the Hon'ble Supreme Court rather shows that if the plaintiff agrees, such transposition should be readily made. As already discussed, no prejudice is going to be caused to the contesting defendants/petitioners. Defendant No.4-Raj Kaur, who has been transposed as plaintiff in this petition has already admitted the claim of the plaintiff. Rather she filed counterclaim which was not allowed as counterclaim cannot be filed inter se defendants.
Therefore, from the above, I find that the order passed by the learned Court below is correct and as per law and does not require any interference from this Court and same is upheld. The present petition being without merits is, hereby, dismissed.
September 10, 2014 (INDERJIT SINGH)
Vandana
VANDANA VERMA
JUDGE
2014.09.22 11:46
I attest to the accuracy and
integrity of this document