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1. This is a revision petition against the order dated 30-10-1982 pass-ed by the learned 3rd Joint Civil Judge, Junior Division, Mehsana, below application Ex. 210 in Regular Civil Suit No. 202 of 1979, rejecting the prayer of the petitioner to transpose her as a plaintiff, and the plaintiff of that suit who wanted to withdraw the suit should be transposed as defendant No. 2.

2. The case has an interesting history. The petitioner purchased a property bearing Block No. 8/A situated in Alkapuri Housing Society. Mehsana, for an amount of Rs. 25.000 from one Babaldas Laxmandas Patel (present opponent No. 2) by a sale-deed dated 26-4-1977. In the said sale-deed opponent No. 2 had also assured the present petitioner to help and co-operate for a complete transfer of the said property in the name of the petitioner in the records of the Municipality, Government and the Society. It was also the case of opponent No. 2 in the sale-deed that no person other than opponent No. 2 had any right, title or interest in the said property. The case of the petitioner is that thereafter she became the owner and occupant of the said property, and on 30-7-1979 she was in peaceful possession and enjoyment of the said property. She was also recovering the rent from the tenants. As the petitioner is ordinarily resident of Bombay, she used to be at Bombay. Whenever she used to be at Bombay, she used to lock her house. When she had so gone to Bombay after locking her house, opponent No. 2 had taken unauthorised possession of the same by breaking open the lock. Therefore, she received a telegram from her tenant Govindbhai Asharam Bardanwala on 1-9-1979 to that effect. On inquiry the said telegram was found to be true. Therefore, she filed a criminal complaint in the Court of the Judicial Magistrate, First Class, Mehsana. It is also her case that opponent No. 2 had taken unlawful possession of the petitioner's property and allowed unlawfully without jurisdiction opponent No. 1 to enter into the rooms of the suit property under the pretext of alleged Banakhat of sale of the said property said to have been executed by opponent No. 2 on 29-4-1979 in favour of opponent No. 1.

4. After the matter went back to the trial Court, no substantial progress was made in spite of the directions of this Court. But when the matter was kept for hearing on 19-6-1982, neither opponent No. 1 nor opponent No. 2 was present. Ultimately, after various adiournments on 12-10-1982 a withdrawal pursis was given by present opponent No. 1 (original plaintiff) under Order 23, Rule 1 of the Code of Civil Procedure. 1908 (hereinafter referred to as 'the Code') which was vehemently opposed to by the petitioner by making an endorsement below the said pursis, and also by presenting a detailed separate application on 18-10-1982, with a prayer that the petitioner should be transposed as the Plaintiff vice original plaintiff (present opponent No. 1) and that present opponent No. 1 (original plaintiff) should be transposed vice the present petitioner as original defendant. No. 2. Reasonable cost was also asked for. The grievance of the petitioner is that the learned trial Judge, by his order dated 30-10-1982, granted the withdrawal Purshis of the plaintiff (present opponent No. 1) under Order 23, Rule 1 of the Code, and ordered her to pay the cost of Rs. 500 to the petitioner, and thus disposed of the suit without considering the prayer of the petitioner for transposition of the parties and restoring the possession of the suit property. In fact, annexed with the petition is the copy of application Ex. 210 in Regular Civil Suit No. 202 of 1979, and also the order below that application of the learned trial Judge. The body part of the said order clearly shows that the request of the petitioner for transposing her as the plaintiff was rejected. Though in the final order, ultimately the suit was disposed of as withdrawn with the order of cost of Rs. 500 to defendant No. 2, in the last paragraph before order portion the learned trial Judge has specifically considered the request and rejected it.

5. The grievance of Mr. N. K. Barot, learned Advocate for the petitioner, is that though the trial Court was authorised to permit withdrawal because there was no prayer for permission to file another suit on the same cause of action, the Court should have granted the request of the petitioner to transpose her as a plaintiff. For this, reliance is placed on the amended provision of Order 23, Rule 1-A of the Code, which is as follows:--

"1-A. 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."

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 Order 1, Rule 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 Order 23, Rule 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 Order 23, Rule 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 he 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.