Madhya Pradesh High Court
Mathura Bai And Ors. vs Daryanamal And Ors. on 2 January, 1995
Equivalent citations: AIR1995MP202, 1995(0)MPLJ427, AIR 1995 MADHYA PRADESH 202, (1995) 2 CIVLJ 770, (1995) MPLJ 427, (1995) 4 CURCC 232
ORDER Sacheendra Dwivedi, J.
1. This petition is preferred by the plaintiffs-petitioners under Article 227 of the Constitution of India for quashing the orders Annexures P/1 and P/2 passed by the trial Court and the appellate Court respectively.
2. The facts may be summarised. Plaintiff-Petitioner Mathura Bai had preferred a suit for permanent injunction against the respondents, but later, she sought the withdrawal of the suit and filed an application to that effect submitting that she had bequeathed the property to petitioner No. 2, and therefore, did not desire to proceed with the suit any more.
3. The respondent had opposed the application. The learned trial Court granted the application and the revision preferred by the respondent was also dismissed. A Misc. Petition was preferred in this Court by the respondent/defendant, and at the motion hearing stage, without any notice to the petitioner, on the contentions of the defenat/ respondent that he too had preferred an application in the suit, but the trial court without deciding the application had wrongly allowed the suit to be withdrawn, it was observed by this Court that the question before the trial Court was not of withdrawal but of substitution. Indeed, without considering that question, the prayer for withdrawal could not be considered. With the said observation, the earlier petition of the respondent was finally disposed of by this Court with a direction that the learned trial Court shall consider the right of respondent to pray for substitution of the trensafaree in place of the plaintiff and within two weeks such application, if made, was directed to be disposed of in accordance with law.
4. Under the direction of this Court, the matter was sent back to the trial Court and the learned trial Court allowed the applications filed afterwards by the respondent under Order 1, Rule 10 of C.P.C. and under Order 23, Rule 10 read with Section 151, C.P.C., and therefore, allowed the prayer of the respondent of impleading the petitioner No. 2 as one of the plaintiff. The order of the learned trial Court was challenged by the petitioners in the appeal which was also dismissed.
5. It is contended by the petitioner/plaintiff that she had not prayed for any substitution, but had prayed only for the withdrawal of the suit, narrating the circumstances under which the withdrawal of the suit was being sought. It is further contended by the petitioners that the respondent had misled this court.
When the trial Court had earlier allowed the application to withdraw the suit, the question was-only of withdrawal of the suit. But in this Court when the earlier petition was preferred by the defendant/respondent, the impression to the Court was given that an application for substitution was also moved in the suit, which was pending, and it was urged that, while keeping the application pending, the suit could be permitted to be withdrawn. On such contention, this Court had directed the learned trial Court to reconsider the matter and pass the proper order afresh. This Court had further observed that for a period of two weeks from the order of this Court, the order passed by the learned trial Court shall remain suspended.
6. When the matter had reached to the trial Court, the respondent had thereafter moved the applications; one under Order I, Rule 10 and the other under Order 23, Rule 10 of C.P.C. and those were allowed. The appeal preferred by the petitioners challenging the order was also dismissed.
7. In this Court, the short question, which arises for consideration, is whether, in the facts and circumstances, the plaintiff, against her will, could be compelled on the prayer of respondent No. 1 defendant to proceed with the suit, by transposing petitioner No. 2, who was also unwilling to prosecute the suit as plaintiff. Admittedly, no application was moved by petitioner No. I/plaintiff for sub- substituting or adding the name of petitioner No. 2 as plaintiff nor petitioner No. 2, had filed any such application.
8. The application in the suit was moved by the respondent for transposing petitioner No. 2 as plaintiff. The petitioner No. 1, who is the plaintiff in the suit and petitioner No. 2, who has been ordered to be transposed as the plaintiff, cannot legally be compelled to prosecute the suit, when they do not desire their suit to be continued. The respondent No. 1 either under Order 1, Rule 10 or under Order 23, Rule 10, C.P.C. has no right to seek the transposition, when the person to be so transposed is not ready to it and rather opposes such transposition.
9. The right of transposition vests in the person, who acquires the rights from the original plaintiff. The transposition as plaintiff for continuing the suit can, therefore, be prayed by the person, who later acquires the right or then by the original plaintiff, on transferring the rights. It may be prayed by the original plaintiff that the party, to whom the interest had been passed during pendency of the suit, may be allowed to be impleaded as plaintiff, in his place. But the situation in the instant case is entirely different, the transposition is being prepared by the respondent-defendant with a further prayer of that the suit be not allowed to be withdrawn. Even the stated counter-claim was also not made by the respondent till the petitioner/plaintiff had filed the application seeking withdrawal of her suit or till the earlier order allowing withdrawal of suit was passed by the trial Court which was only by this Court, in the absence of petitioner/plaintiff.
10. The learned Court below while allowing the application for transposition of petitioner No. 2 as plaintiff has also ordered that the suit cannot be allowed to be withdrawn. But the order, on both counts, as discussed above, suffers from the lack of jurisdiction.
11. The piaintiff/petitioner, in the circumstances and in the absence of any counterclaim, had the liberty to withdraw the suit if she did not desire to stake her claim any further.
12. I have also found no substance in the contention advanced by the respondent that the order of transposition was, in fact, made by a Division Bench of this Court in the earlier Misc. Petitioner No. 1274 of 1988 and the single Bench has no jurisdiction to go against the order of Division Bench.
13. The argument is totally misconceived. This Court had only directed in the earlier petition that the respondent had a right to pray for substitution and/ or transposition of petitioner No. 2 in place of the plaintiff/ petitioner No. 1 and that, if prayed, would be considered by the trial Court. The order of this Court was not of allowing the transposition. The substitution was opposed by petitioner No. 2 itself, i.e., the party sought to be substituted by the respondent for the plaintiff. Against the will of a party, the respondent/ defendant had no right to seek such substitution or transposition. The authority of this Court in Kartar Singh v. Konhai Singh, (1989 Jab LJ 461): (AIR 1989 Madh Pra 322) is not on the point and is of no avail to the respondents. Whereas, Manoharpuri v. Girdhari (1985 MPWN 579) supports the view taken by me.
14. Further, till the earlier orders, passed by the trial Court which was also confirmed by the revisional Court, were not set aside, the trial Court could not pass the order Annexure P/1 nor the appellate Court had jurisdiction to pass order Annexure P/2.
15. Accordingly, the petition succeeds. The two orders as contained in Annexurcs P/1 and P/ 2 passed by the trial Court and the appellate Court respectively are quashed and the orders Anenxures P/5 and P/6 are maintained. But in the facts and circumstances, there shall be no order as to the costs.