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M.P.No. 1 of 2015 is filed under order 23 Rule 1A of Civil Procedure Code for transposing the 2nd respondent in C.M.P.No.2/2012 in S.A.SR.No.4004/2012 as the 2nd petitioner/ 2nd appellant and record him as legal representative of the deceased 1st appellant.

2. The brief facts of the case are as follows:

One Manickam @ Chinnappan filed a suit in O.S.No.224/1999 on the file of the District Munsif Court, Pennagaram, against one Rathna and Munusamy for declaration of his title to the suit property, for permanent injunction restraining the defendants therein from interfering with his peaceful possession and enjoyment and for injunction restraining the 2nd defendant therein from taking any further proceedings based on the decree obtained against the first defendant therein in O.S.No.70/1987 on the file of the Sub-Court, Krishnagiri. The said Ratna is the daughter of the said Manickam @ Chinnappan and the said Munusamy was the agreement holder who obtained the decree for specific performance against Ratna. The trial Court decreed the suit on 20.12.2000. The 2nd defendant namely Munusamy filed appeal in A.S.No.60/2001 on the file of Sub-Court, Dharmapuri. The plaintiff namely, Manickam @ Chinappan was shown as the 1st respondent and the said S.Rathna was shown as the 2nd respondent therein. The lower appellate Court, by its judgment and decree dated 19.11.2002, allowed the appeal and thus, dismissed the suit. Aggrieved against the judgment and decree of the lower appellate Court, the plaintiff preferred Second Appeal S.R.No.4004/2012 before this Court, however with a delay of 3260 days. For condoning such delay, M.P.No.2 of 2012 was filed and the same was dismissed on 17.08.2012 for non-prosecution. A petition to restore M.P.No.2 of 2012 was filed in C.M.P.No.3 of 2012 with the supportive affidavit of the junior counsel. However, in the mean time, the sole appellant died on 25.08.2012. The said Ratna who is the 2nd respondent in the second appeal (Petitioner in the present miscellaneous petition) filed two separate applications one to bring herself on record as the legal heir of the deceased appellant and the other one to transpose her as the appellant in the place of the deceased appellant. After filing these petitions and before its disposal, the restoration petition in C.M.P.No.3/2012 came up for hearing and the same was dismissed on 18.03.2015 on the reason that it was filed in the name of the dead person, however, by granting liberty to the legal representatives of the deceased appellant to work out their remedies in this Second Appeal. Thereafter, the LR petition in M.P.No.1 of 2013 was taken up for hearing and though the said petition was ordered on 10.08.2015, by a subsequent order dated 27.10.2015, the learned Judge recalled the said order as the counsel for the petitioner sought permission to withdraw such LR petition since the other application to transpose the 2nd respondent as the appellant has already been filed and the same is pending. Accordingly, the learned Judge dismissed M.P.No.1/2013 as withdrawn. Thereafter, the present M.P.No.1/2015 is posted before me for hearing and disposal.

5. With the above factual background, let me consider the present petition filed by the petitioner seeking to transpose herself as the appellant and its maintainability.

6. Before answering the said question, it is better to know the scope and ambit of Order 23 Rule 1A of Civil Procedure Code which deals with transposing of Defendant as Plaintiff. It reads as follows:

Order XXIII Rule 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 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.

8. Mr. Barot also relied on the decision of the Madhya Pradesh High Court in Sampatbai v. Madhusingh, AIR 1960 Madh Pra 84. Therein it has been held that under O. 1. R. 10(2) of the Code the test is not whether the joinder of the person proposed to be added as a defendant would be according to or against the wishes of the Plaintiff or whether the joinder would involve an investigation into a question not arising on the cause of action averred by the plaintiff. Though that decision pertained to adding of the defendant. Mr. Barot has relied on it because, according to him, if the question is to be decided by the Court in favour or against a person, he should be a party no dispute can be raised about that principle. But one thing cannot be ignored that to be transposed as a plaintiff, the defendant who claims to be transposed must have interest identical with the interest of the plaintiff. There are cases where plaintiff filed a suit who has interest in common to the person whom he makes pro forma defendant. In collusion with the contesting defendant, such a plaintiff may sometime decide to withdraw the suit. In order not to defeat the claim of pro forma defendant, who has an identical interest with the plaintiff by such a withdrawal, provision of O. 23. R. 1-A of the Code is made so that pro forma defendant or the defendant can be transposed as a plaintiff and the suit as filed by the plaintiff can be effectively proceeded against the defendant who has remained on the record as defendant. This is what the spirit of O. 23. R. 1-A of the Code shows, because in such cases, the applicant (defendant applying to be transposed as Plaintiff) has a substantial question to be decided as against any of the remaining defendants. Though Courts lean against multiplicity of suits and therefore, this provision of transposition is made only to avoid another suit. Courts would not permit such transposition just to give a chance to a litigant to avoid filing a suit, or permit him to take advantage of the suit filed by his adversary against him claiming a relief against him by becoming a plaintiff and trying to bring out the averments and reliefs which are contrary to those claimed by the original plaintiff. I am observing this specifically because the original plaintiff filed a suit for injunction against, the present petitioner and original defendant No. 2 from interfering with her possession of the suit property. It is true that if the present petitioner is transposed, she can claim that against the remaining defendant, i.e. defendant No. 1. But that would not be the same cause of action on which the original plaintiff has relied. That cause of action will be something different in the form of transaction between the petitioner and opponent No. 2 Babaldas. Transposition is normally permissible and necessary in suits between partners for accounts, possession of partnership property or for partition, where there are some pro forma defendants.

18. The said decision is subsequently relied on in a recent decision of the Bombay High Court reported in 2015 SCC Online Bombay 3431 (Maooli Land Developers v. Taukir Ahmed Mohammed Hanif Khan) wherein at paragraph No.10, it has been observed as follows:

1. It is true that the provision of Order 23, Rule 1-A is new, but would that change the character and requirement of transposition? It merely permits that if the plaintiff withdraws the suit, the defendant can request the Court to transpose him as plaintiff if the substantial question has to be decided against the remaining defendant. But that is circumscribed by the position under Order 1, Rule 10 of the Code, meaning thereby, under what circumstances transposition can be permitted. This provision is added, as stated earlier, in order to facilitate a pro forma defendant who has identical interest from being denied his right if he rested on the success of the plaintiff's suit and the plaintiff wanted to withdraw the suit. So, in that case if such a defendant is transposed as plaintiff, he can effectively get adjudication of his right. Courts even without this provision have considered as to what would be the position, when a plaintiff attempts to withdraw the suit on the rights of all other pro forma plaintiffs or pro forma defendants or defendants who have a cause of action identical to that of the plaintiff. In order to make a clear provision, this provision was added, though it was also considered on the same lines earlier irrespective of this provision. So, the normal consideration for transposition, that interest of the person to be transposed as plaintiff must be identical to the interest of the plaintiff who tries to withdraw, would not go away.