Madhya Pradesh High Court
Ganesh Dutta Paraha vs Shri Radha Krishnaji Maharaj (The ... on 6 February, 2026
NEUTRAL CITATION NO. 2026:MPHC-JBP:11494
1 MP-951-2019
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 6 th OF FEBRUARY, 2026
MISC. PETITION No. 951 of 2019
GANESH DUTTA PARAHA AND OTHERS
Versus
SHRI RADHA KRISHNAJI MAHARAJ (THE DEITY) AND OTHERS
Appearance:
Shri D.K. Dixit - Senior Advocate with Shri Anshul Dixit - Advocate
for the petitioner No.1 & 2.
Shri Avnish Khatri - P.L. for the respondents / State.
Shri S.S. Rathore - Advocate for respondent.
ORDER
The present petition has been filed challenging the order Annexure P- 9 passed by the trial Court dated 22.01.2019 whereby the trial Court has rejected application for transposition of defendant No.1 as plaintiff No.4. The application was filed by the other defendants by some of the other defendants for transposition of defendant No. 1 as plaintiff No.4 on the ground that defendant No.1 and the plaintiffs have common interest and therefore defendant No.1 will be transposed as plaintiff No.4.
2 . Learned counsel for the petitioner has vehemently argued that if some of the defendants have common interest with the plaintiff, then they can be transposed as defendant and therefore the defendant No.1 does not need to be in the array of defendants of the suit and he needs to be arrayed as Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 16-02-2026 15:16:02 NEUTRAL CITATION NO. 2026:MPHC-JBP:11494 2 MP-951-2019 a plaintiff as he has common interest with the other plaintiffs.
3 . Upon considering the aforesaid assertion, it is seen that the suit has been filed by the plaintiffs on the ground that plaintiffs for declaration and permanent injunction seeking the relief that the sale deed executed by defendant No.1 in favour of defendants No.2 to 7 be declared not binding on the plaintiff which is the Deity and the sale deeds executed in favour of defendants No.8 to 15 by late Rambaboo Malviya be also declared null and void as against the Deity and injunction be issued against the defendants No.2 to 15. Therefore, it is the case of the petitioner that no relief is sought against the defendant No.1 and the plaintiffs have common interest with the defendant No. 1 and therefore the defendant No.1 be transposed as plaintiff No.4.
4. It is settled in law that transposition can be carried out either under Order 1 Rule 10(2) or under Order 23 Rule 1A CPC which are as under:-
"10(2) Court may strike out or add parties .--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. 1A.When transposition of defendants as plaintiffs may be permitted.--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 I 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."Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 16-02-2026 15:16:02
NEUTRAL CITATION NO. 2026:MPHC-JBP:11494 3 MP-951-2019 5 . Transposition under Order 1 Rule 10(2) CPC can be made when it appears to the Court to just to order that the name of any party improperly joined as plaintiff or defendant be struck out or a person who ought to have been joined whether as plaintiff or defendant or whose presence before the Court may be necessary to enable the Court to effectively adjudicate the questions involved in the suit be added as party in appropriate character. As per Order 23 Rule 1-A, where the suit is withdrawn or abandoned by the plaintiff and defendant applies to be transposed as plaintiff then the Court can transpose the defendant as plaintiff.
6 . Reliance was placed on Judgement of the Punjab and Haryana High Court in case of Nishabar Singh v. Local Gurdwara Committee Manji Sahib, Karnal, 1986 SCC OnLine P&H 217, AIR 1986 P&H 402 to contend that defendant No.1 has common interest with the plaintiffs. However, this alone cannot be a relevant factor to order transposition and even in the case decided by the High Court of Punjab and Haryana relied by the counsel for petitioner, defendant No.1 in that case was held entitled to decree and hence he was transposed as plaintiff to do complete justice between the parties and the defendant himself had prayed that he be transposed as plaintiff.
7 . However, in the present case neither the defendant No.1 is willing to be transposed as plaintiff nor the plaintiffs are willing to get the defendant No.1 transposed as plaintiff No.4. In absence of consent of the concerned parties, transposition cannot be ordered by the Court under Order 23 Rule 1A because it is not the case where the suit has been withdrawn by plaintiff and Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 16-02-2026 15:16:02 NEUTRAL CITATION NO. 2026:MPHC-JBP:11494 4 MP-951-2019 now defendant wants to be transposed as plaintiff because consent of the defendant is material and abandonment of claim by the plaintiff is the second material reason to order transposition under Order 23 Rule 1A CPC.
8 . So far as exercising jurisdiction under Order 1 Rule 10 (2) is concerned, the Court has to arrive at satisfaction that a party who ought to have been joined in a particular character has not been joined in that character. Recently the issue has been considered by the Hon'ble Supreme Court in case of R. Dhanasundari v. A.N. Umakanth, (2020) 14 SCC 1 in the following manner:-
"8. The law of procedure relating to the parties to a civil suit is essentially contained in Order 1 of the Code of Civil Procedure, dealing with various aspects concerning joinder, non-joinder and misjoinder of parties. Rule 10 of Order 1 specifically provides for addition, deletion and substitution of parties; and the proposition for transposition of a party from one status to another, by its very nature, inheres in sub-rule (2) of Order 1 Rule 10 CPC that reads as under:
"10. (2) Court may strike out or add parties .
--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."
9. On the other hand, the law of procedure in relation to withdrawal and adjustment of suits is contained in Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 16-02-2026 15:16:02 NEUTRAL CITATION NO. 2026:MPHC-JBP:11494 5 MP-951-2019 Order 23 of the Code of Civil Procedure. As per Rule 1 thereof, a plaintiff may seek permission for withdrawal of suit or abandonment of a part of claim. Rule 1-A thereof [ Inserted by the Amendment Act No. 104 of 1976.] deals with an eventuality where the plaintiff withdraws his suit or abandons his claim but a pro forma defendant has a substantial question to be decided against the co-defendant. This Rule 1-A of Order 23 CPC reads as under:
"23. (1-A) When transposition of defendants as plaintiffs may be permitted.--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. It remains trite that the object of Order 1 Rule 10 CPC is essentially to bring on record all the persons who are parties to the dispute relating to the subject- matter of the suit so that the dispute may be determined in their presence and the multiplicity of proceedings could be avoided. This Court explained the principles, albeit in a different context, in Anil Kumar Singh v. Shivnath Mishra [Anil Kumar Singh v. Shivnath Mishra, (1995) 3 SCC 147] in the following: (SCC p. 150, para 7) "7. ... The object of the rule is to bring on record all the persons who are parties to the dispute relating to the subject-matter so that the dispute may be determined in their presence at the same time without any protraction, inconvenience and to avoid multiplicity of proceedings."
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 Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 16-02-2026 15:16:02 NEUTRAL CITATION NO. 2026:MPHC-JBP:11494 6 MP-951-2019 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.
12. The present one is clearly a case answering to all the basics for applicability of Rule 1-A of Order 23 read with Order 1 Rule 10 CPC. As noticed, the principal cause in the suit is challenge to the sale deed executed by Defendant 1 in favour of Defendant 2, with the original plaintiff asserting his ownership over the property in question. After the demise of original plaintiff, his sons and daughters came to be joined as Plaintiffs 2 to 8 with Plaintiff 5 being the power-of- attorney holder of all the plaintiffs. After the suit was decreed ex parte, Plaintiff 5 transferred the property in question to the aforesaid three purchasers, who were joined as Plaintiffs 9 to 11 when the ex parte decree was set aside and suit was restored for bi parte hearing. In the given status of parties, even if Plaintiffs 5 and 9 to 11 were later on transposed as Defendants 3 to 6, the suit remained essentially against Defendants 1 and 2, that is, in challenge to the sale deed dated 23-3-1985, as executed by Defendant 1 in favour of Defendant 2. In regard to this cause, even if Plaintiffs 5 and 9 to 11 came to be transposed as Defendants 3 to 6, their claim Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 16-02-2026 15:16:02 NEUTRAL CITATION NO. 2026:MPHC-JBP:11494 7 MP-951-2019 against Defendants 1 and 2 did not come to an end; rather, the interest of the existing plaintiffs as also Defendants 3 to 6 had been one and the same as against Defendants 1 and 2."
9. In the present case the Court could have exercised jurisdiction under Order 1 Rule 10(2) CPC if the defendant No.1 had not been party to the suit but he is duly impleaded as party to the suit and the plaintiffs are not withdrawing their claim. Even the defendant No.1 has not been alleged to be held entitled to a decree by the trial Court and therefore in the present case the jurisdiction either under order 23 Rule 1A or under Order 1 Rule 10(2) CPC could not be exercised by the trial Court.
10. Therefore, in the considered opinion of this Court, the trial court has not erred in rejecting the application filed by the defendants number 2 to 7.
11. Consequently, the petition fails and is dismissed.
(VIVEK JAIN) JUDGE nks Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 16-02-2026 15:16:02