Madhya Pradesh High Court
Saroj Dubey vs Smt Asha Rani on 12 May, 2026
1 MP-2930-2026
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 12th OF MAY, 2026
MISC. PETITION No. 2930 of 2026
SAROJ DUBEY
Versus
SMT ASHA RANI AND OTHERS
Appearance:
Shri Vidya Prasad - Advocate for petitioner.
Shri Amit Vikram Pandey - Panel Lawyer for respondent No.7.
ORDER
By way of this petition, challenge is made to the order dated 26.03.2026 passed by the trial Court, whereby the trial Court has directed the defendants No.1 to 3, who were earlier transposed as plaintiffs vide order dated 30.07.2024, to be again restored as defendants by acceding to the oral prayer of the original defendants No.1 to 3.
2. The counsel for the petitioner has vehemently argued that a collusive suit has been filed by the plaintiffs who are the mother and sisters of defendants No.1 to 3, to avoid certain transactions made by the defendants No.1 to 3 in favour of present petitioner who is defendant No.4. Since the written statement had been filed by these defendants No.1 to 3 in such a manner so as to support the case of the plaintiffs, therefore, petitioner had filed an application for transposing these defendants No.1 to 3 as plaintiffs in terms of Order 1 Rule 10 CPC which was allowed by the trial Court on 30.07.2024 Signature Not Verified Signed by: PREM SHANKAR MISHRA Signing time: 14-05-2026 18:31:30 2 MP-2930-2026 and these three defendants No.1 to 3 stood transposed as plaintiffs. However, at a later stage of the suit, an oral prayer was made by the newly transposed plaintiffs and permitted them to be again restored as defendants No.1 to 3. It is argued by learned counsel for the petitioner/defendant No.4 that after once having taken a particular decision by the trial Court on 30.07.2024, thereafter the trial Court could not have turned back on the said decision at a later stage and could not have again transposed the said three plaintiffs again as defendants because they stood transposed as plaintiffs and the said order went unchallenged and it was final between the parties.
3. On considering the aforesaid assertions of counsel for the petitioner and on the perusal of the record, it is seen by this Court that a suit has been filed by the plaintiffs who are mother and sisters of defendants No.1 to 3, whereby relief of declaration and possession has been sought by the original plaintiffs.
4. As the defendants No.1 to 3 had filed a written statement in a manner which supported the case of plaintiffs to an extent, therefore, the petitioner/defendant No.4 filed an application for transposition of defendants No.1 to 3 as plaintiffs which was permitted by the trial Court on 30.07.2024. After such transposition, the situation arose that there were two Advocates representing the plaintiffs. One Advocate was representing the original plaintiffs and one Advocate was representing the newly transposed plaintiffs. The transposition did not take place with consent of the plaintiffs. Neither the consent of original plaintiffs was there nor the consent of newly transposed plaintiffs was there in such transposition. The trial Court, therefore, by its order dated 30.07.2024 created a condition which is Signature Not Verified Signed by: PREM SHANKAR MISHRA Signing time: 14-05-2026 18:31:30 3 MP-2930-2026 unknown to law.
5. It is settled in law that transposition can be carried out either under Order 1 Rule 10(2) CPC 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."
6. Transposition under Order 1 Rule 10(2) CPC can be made when it appears to the Court to be just, order that the name of any party improperly joined whether 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 1A, 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.
7. However, in the present case, neither the defendant No.1 to 3 were willing to be transposed as plaintiff nor the plaintiffs were willing to get the defendant No.1 to 3 transposed as plaintiffs. In absence of consent of the concerned parties, transposition cannot be ordered by the Court under Order Signature Not Verified Signed by: PREM SHANKAR MISHRA Signing time: 14-05-2026 18:31:30 4 MP-2930-2026 23 Rule 1A CPC because it is not the case where the suit has been withdrawn by plaintiff and now defendant wants to be transposed as plaintiff because consent of the defendant is material and abandonment of claim by the plaintiff is the material reason to order transposition under Order 23 Rule 1A CPC.
8 . So far as exercising jurisdiction under Order 1 Rule 10(2) CPC 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 the case of R. Dhanasundari v. A.N. Umakanth, reported in (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 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 Signature Not Verified Signed by: PREM SHANKAR MISHRA Signing time: 14-05-2026 18:31:30 5 MP-2930-2026 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 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.
1 2 . 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 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 Signature Not Verified Signed by: PREM SHANKAR MISHRA Signing time: 14-05-2026 18:31:30 6 MP-2930-2026 been one and the same as against Defendants 1 and 2."
9. In the present case, the trial Court could have exercised jurisdiction under Order 1 Rule 10 CPC if the defendants No.1 to 3 had not been parties to the suit but they were duly parties to the suit as defendants No.1 to 3 and the plaintiffs were not withdrawing their claim. The defendants No.1 to 3 did not seek any decree in their favour and, therefore, in the present case, neither the jurisdiction under Order 23 Rule 1A or under Order 1 Rule 10(2) CPC could be exercised by the trial Court. The trial Court created an anomalous situation by such transposition and there were two Advocates representing the two different sets of plaintiffs. This anomalous situation has now been removed by the trial Court by passing the subsequent order dated 26.03.2026, though on the oral prayer of the newly transposed plaintiffs. The trial Court has rightly restored the newly transposed plaintiffs as defendants No.1 to 3, which does justice with the parties to the suit.
10. Therefore, this Court does not find any good ground to interfere with the well-reasoned order passed by the trial Court. The petition fails and is dismissed.
(VIVEK JAIN) JUDGE psm Signature Not Verified Signed by: PREM SHANKAR MISHRA Signing time: 14-05-2026 18:31:30