Indian Kanoon - Search engine for Indian Law

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.

9. In Ram Prasad Choudhary v. Mst. Fulia, AIR 1964 Pat 508, the Patna High Court considered that where it is necessary for a complete adjudication of the questions involved in the suit, parties may be added or transposed, but where the scope or character of the suit will be altered by the addition or transposition (as where the pro forma defendants do not wish to adopt the plaintiff's case), such addition or transposition cannot be permitted.

10. In Jagabandhu Saha v. Haris Chandra Sil, AIR 1922 Cal 459, the question was whether transfer by one Kumari was for legal necessity and whether the transfer created an indefeasible title. It was found that the plaintiff could succeed only on the basis that the sale by Kumari was for legal necessity. The fourth and fifth defendants, if they sued as plaintiffs, could succeed only on the contradictory hypothesis that the sale was not for legal necessity and did not affect their interest as reversioners. Therefore, it was held that if the application had been granted it would have been necessary for the added plaintiffs to discard the entire evidence on the record and succeed on a case which not only was not made in the first Court but was absolutely contradictory to the evidence put forward. This was pertaining to the transposition at the appellate stage.

11. Mr. Barot for the petitioner made a grievance that the aforesaid decisions only refer to the provisions of Order 1, Rule 10 of the Code and the Courts had no occasion to consider the provision of Order 23, Rule 1-A of the Code which is added now. 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 considered 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.

12. There is an old decision of the Bombay High Court in Edulji Muncherji Wacha v. Vullebhov Khanbhoy, (1883) ILR 7 Bom 167. It was a suit in partnership. The plaintiff in the Partnership suit, to which there were 21 defendants, applied to the Court for leave to withdraw the suit, or that the suit might be dismissed. 10 of the defendants supported the plaintiff's application. Two of the defendants objected, and applied under Section 32 of the Civil P. C. 1877, that they might be made plaintiffs and that the plaintiff might be made a defendant. The Bombay High Court (West. J.) considered that the provision of transposition to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, means that the questions in an ordinary suit arise on the allegations made by the plaintiff, and prima facie it would appear that if the plaintiff withdraws, the allegations are withdrawn, and no question remains for the Court to decide. It was further held that a partnership suit is a suit of a peculiar character, and the parties to such a suit do not stand to each other precisely in the same relation as parties to suits generally. Each of the parties to a partnership suit, however he may be formally ranked, is really in turn plaintiff and defendant, and in both capacities comes before the Court for the adjudication of his rights relatively to the other partner, which the Court endeavours to determine by its decree. Therefore, the transposition was considered to be proper. So, these principles would not go away even if under Order 23, Rule 1-A of the Code provision is added permitting the defendant to request the Court to transpose him as plaintiff when the original plaintiff withdraws the suit. 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.