Patna High Court
Thakur Chaudhry And Ors. vs Brahmdeo Chaudhry And Ors. on 16 February, 1978
Equivalent citations: AIR1979PAT58, 1978(26)BLJR776, AIR 1979 PATNA 58, 1978 BLJR 776 (1978) BLJ 706, (1978) BLJ 706
ORDER Madan Mohan Prasad, J.
1. This application is directed against an order by which the court below has transposed the plaintiffs to the category of defendants and defendants second party to the category of plaintiffs.
2. It appears that a suit for partition was filed by the original plaintiffs for partition of the ancestral properties between them and the defendants second party. It was further stated that some properties had originally belonged to the ancestor (sic) of these parties and one Ram Kheli Choudhry and one Gudar Chaudhry, but they had been partitioned in the year 1940 between them on the one hand and the ancestor of the plaintiffs and defendants first party on the other. Thus different shares were claimed by the plaintiffs in respect of those properties as also the other ancestral properties. It may be mentioned that the plaintiffs' case was that plaintiff No. 1 had been adopted in the Kritrim form by his father's brother and, therefore, was entitled to the lands and interest as a whole and claimed half share besides the 1/4th share, he was entitled to in respect of his natural father. Gudar's descendants and Ramkheli Chaudhry were impleaded as defendants second and third parties.
3. The defence of the defendants first party was that the plaintiff had been adopted in the Duttak form of adoption and thus could not claim with respect to the natural father's properties and so they were entitled to only half share. The defendants second party however, filed a written statement alleging that their ancestor Gudar was a full brother of the father of the plaintiffs and the defendants first party, and, therefore, they were entitled to share in the entire properties. Their case further was that Gudar continued to be joint with his brothers. They also challenged the story of adoption. Accordingly, they claimed that only Gudar and the father of the plaintiffs being the only coparcener, they were entitled to half share in the entire properties.
4. During the pendency of the suit, on the 25th of March, 1976 the defendants second party-opposite party here, filed a petition stating that since they had filed their written statement, the plaintiffs had given up taking any steps in the suit with a view to have it dismissed for default which would prejudice them and in view of this as also with a view to avoid multiplicity of suit they should be transposed to the category of plaintiffs and the plaintiffs be made defendants. The court below accepted the prayer. Hence this application.
5. Reading the order I find that having stated the claim of the defendants and then the objection of the plaintiffs to the effect that the transposition would change the nature of the suit, the learned Judge held that the plaintiffs having admitted that Gudar's branch had 1/6th share in some of the lands and the defendants second party claiming only their share in the lands, the nature of the suit would not change. Further he held that in order to avoid multiplicity of suits it is proper to transpose the parties as stated above.
6. I have perused the entire order-sheet in order to find out, the court below not having given any express finding on the question of fact, whether the plaintiffs had stopped taking steps in the case and wanted to get the suit to be dismissed. The finding is however implicit inasmuch as he would not transpose the plaintiffs to the category of defendants if he had not been convinced of that, for if the plaintiffs were diligently prosecuting the suit, there would be no question of relegating them to the category of defendants. The question, therefore, arises whether on the facts the court below had any material at all, on the basis of which he could come to the said finding. In this respect I have scrutinised the order sheet with a view to find that steps were taken by the plaintiffs and I find that this suit was transferred to the court of the learned Judge on 14th March, 1976 and on every date thereafter both the parties, the plaintiffs and the defendants, had taken one step or the other. Even before the suit was transferred to the learned Subordinate Judge, on earlier occasions also, the plaintiffs were prosecuting the suit. It was only on two dates that they were absent and had taken no steps, namely, 18th Feb. 1976 and 3rd March, 1976. But on numerous dates before that the plaintiffs were present and had taken steps. It is obvious thus that the court below did not apply its mind to the question as to whether the allegation of the defendants, to the effect that the plaintiffs wanted to have the suit dismissed, had any basis. It was on this assumption however, that he allowed the prayer and the assumption had no basis to warrant it.
7. It is well known that when a plaintiff comes before a court, he has a right to have his dispute adjudicated upon and unless he chooses to withdraw the suit or there is some other good reason available in law, the court cannot refuse to adjudicate upon the claim put forward by him. It is true that Order 1, Rule 10, Sub-rule (2) of the Civil P. C. enables a court to transpose the parties from one category to the other. It is, however, well settled that such a transposition is generally not allowed if the nature of the suit is likely to be altered. A person can be added as a co-plaintiff with another only when he can adopt the plaintiff's case. Persons having conflicting cases cannot be made co-plaintiffs and if the plaintiff and the defendant have conflicting cases, the question of making the defendant a plaintiff and the plaintiff a defendant does not arise until such a contingency occurs when, for instance, the plaintiff is withdrawing from the suit. It is not necessary to cite authorities on these propositions, for they are so obvious. I would, however, mention them, for counsel for the petitioners has placed reliance thereon. The first is the decision in the case of Jagrao Kunwar v. Bhagwan Kunwar (AIR 1921 All 184); Ram Prasad Choudhary v. Mst. Fulia (AIR 1964 Pat 508); Ramaswami Reddi v. Deiva-sigamani Pillai (AIR 1947 Mad 395) and Kalyan Singh v. Kagdi Ram (AIR 1977 Him Pra 73).
8. Turning back to the facts of the present case, it needs to be pointed out that the plaintiffs had impleaded defendants second party merely as persons who were descendants of Gudar and who earlier had some interest in some of the lands alone and had been given a share on partition between them and the ancestors of the plaintiffs and defendants first party. It has been urged that they were merely pro forma defendants. Same is the situation with regard to the defendants third party. In other words, they were treated as strangers to the family and as persons being co-sharers in respect of some of the lands at one time which had been partitioned in the year 1940. Thus, there was no claim of such defendants recognised nor any reliefs were prayed for as against them. It is quite obvious thus that the claim made by these defendants (second party) is contradictory to the case of the plaintiffs. They claim to be descendants of a coparcener of the same family as the plaintiffs. They challenged the factum of adoption of plaintiff No. 1 by his uncle, even though that is admitted by the second (first?) party, though there is difference with regard to the form of adoption. There cannot be a slightest doubt that their case is absolutely contradictory to the case of the plaintiffs as also of defendants first party. The main questions if they are allowed to be the plaintiffs, would be whether their ancestor Gudar belonged to the family of the plaintiffs and the defendants first party at all and further whether, plaintiff No. 1 was at all adopted.
9. It is true that parties can be added as plaintiffs or defendants in order to avoid multiplicity of suits. But it must be remembered that the addition of such parties must be necessary for final adjudication of the question in dispute. It does not permit a misjoinder of causes of action. If causes of action of different parties are entirely different from each other, they cannot be put in the same category of plaintiffs and asked to prosecute the suit, each plaintiff seeking for a decree contrary to the decree sought for by another.
10. It is thus obvious that in the present case the learned Subordinate Judge acted on assumption of facts which has no existence and the order is thus clearly without jurisdiction. I may further observe that the court below has not appreciated at all the law on the point, in respect of grant of an order of transposition of parties where cases are conflicting or where it would have the result of changing the nature of the suit entirely. It is well known that approaching a case from a wrong point of view entirely, is a material error in the exercise of jurisdiction. For the reasons aforesaid, I have to set aside the order passed by him.
11. In the result, the application is allowed. But in the circumstances of the case, there will be no order as to costs.