1 RULE 10(2) - STRIKING OUT OR ADDING OF THE PARTIES OR TRANSPOSING OF PARTIES UNDER - HELI) - The Court can by suo-motu or on the application of any of the defendants may transpose a defendant as plaintiff - Transposition can be made to do complete justice between the parties and with a view to avoid multiplicity of proceedings. ON FACTS, HELD - For a complete and effectual adjudication upon the question involved in the suit and to avoid multiplicity of proceedings, the Trial Court has allowed the applications transposing 7th defendant as co-plaintiff.
Dismissing the W.P, the Court.
Held:
The 7th defendant in the application claims to be the jointowner of the property along with the plaintiff. He again saysthat having regard to the decree in O.S. No.576/1994 he is theabsolute owner of the said property. The sale deed said to havebeen executed by the 6th defendant, which is under challenge inthe said suit is in respect of the same property. Therefore, itcannot be said that he has no interest in the suit scheduleproperty. Further, the plaintiff does not object for transposingdefendant No. 7 as a co-plaintiff As stated above the Trial Courton a proper consideration of facts and circumstances has allowedthe applications.
ORDER S. Abdul Nazeer, J.
1. The Petitioners in these petitions have called in question the orders passed by the Civil Judge (Sr. Dvn.) and C.J.M. Haveri (for short "Trial Court") on I.A. Nos.6 and 7 in O.S. No. 113/2000 dated 6.12.2003, whereby the Trial Court has allowed the said applications for transposing the respondent No.3 (Defendant No.7 in the Trial Court) as Co-plaintiff and for amendment of the plaint.
2. The 1st respondent is the plaintiff, the Petitioners are defendants 1 to 5 and respondent Nos.2 and 3 are defendant Nos.6 and 7 in the said suit. For the sake of convenience parties are referred to in their respective ranks before the Trial Court.
3. The plaintiff filed the said suit for declaration that the registered sale deed executed by the 6th defendant in favour of the husband of the Petitioner No. l and father of Petitioner Nos.2 to 5 as null and void and for permanent injunction. In the plaint it is contended that the husband of the plaintiff and father of the 7th defendant are brothers and that her husband died in the year 1968 leaving behind her as the sole heir. Likewise, father of the 7th defendant died in the year 1987 leaving behind 7th defendant as his heir and legal representative. It is alleged that the 6th defendant created a power of attorney dated 15.04.1993 in his favour. Thereafter, he has executed a sale deed in respect of her share in the suit schedule property in favour of the husband of respondent Nos. 1 to 5.
4. The 7th defendant has filed LA. No.6 for transposing himself as additional plaintiff and I.A. No.7 for amendment of the plaint. In the Affidavit filed in support of I.A. No.7, it is contended that the husband plaintiff and his father are brothers and that himself and plaintiff are in joint possession and enjoyment of the suit properties. It is further contended that the 6th defendant being a close relative of the plaintiff has played fraud and misrepresentation on the plaintiff and obtained false and concocted power of attorney from her and sold the properties to the husband of defendant No.l and father of defendants 2 to 5. That after coming to know all the facts the plaintiff has filed the present suit challenging the alleged sale deed executed by defendant No.6 in favour of the husband of defendant No.l and father of defendant Nos.2 to 5. It is further contended that he has filed a suit O.S. No.576/1994 on the ground that he is in possession of the entire property and that the said suit was compromised by the plaintiff and himself and that in the light of the compromise decree he has got light, title and interest in the suit schedule property. Therefore, he has filed an application for transposing himself as plaintiff and for consequential amendment.
5. The said application was resisted by the defendants 1 to 6. It is contended that the 7th defendant is a stranger to the property in question and that he has no right, title or interest over the said property. It is further contended that when the plaintiff herself has no right, title and interest in the property in question, the defendant No.7 cannot be transposed as additional plaintiff and continue the said suit.
6. I have heard the learned Counsel for the parties and perused the materials placed on record.
7. The Learned Counsel for the Petitioners (defendants 1 to 5) submits that the plaintiff had no right, title or interest in the property. The cause of action pleaded was execution of the sale deed said to have been executed by the 6th defendant in favour of the husband of the defendant No.l and father of defendants 2 to
5. It is further contended that in the application the 7th defendant contends that he is in joint possession of the property along with the plaintiffs. He again states that having regard to the compromise decree in O.S. No.576/1994, he is the absolute owner of the property. Therefore, transposing of the 7th defendant as a co- plaintiff does not arise because the suit was for cancellation of sale deed executed by 6th defendant claiming to be an agent of the plaintiff. At best, the 7th defendant has to file a separate suit seeking appropriate relief.
8. On the other hand, the Learned Counsel for the respondent Nos. 1 and 3 (plaintiff and 7th defendant respectively) submits that the suit is for cancellation of sale deed in respect of the suit schedule property. In the application defendant No.7 has clearly stated that he is a joint owner of the property. Therefore, he is also equally interested in challenging the sale deed said to have been executed by the defendant No.6.
9. The Trial Court in the course of its order has fixed the following points for consideration:
1. Whether the defendant No.7 has made out grounds to transpose him as plaintiff No.2?
2. Whether the defendant No.7 has made out grounds to allow the proposed amendment sought in I.A. No.7?
10. After a detailed consideration of facts and circumstances of the case, the Trial Court has allowed the said applications. Therefore, the question for consideration is whether the order of the Trial Court calls for interference in exercise of the supervisory jurisdiction.
11. The 7th defendant in the application claims to be the joint owner of the property along with the plaintiff. He again says that having regard to the decree in O.S. No.576/1994 he is the absolute owner of the said property. The sale deed said to have been executed by the 6th defendant, which is under challenge in the said suit is in respect of the same property. Therefore, it cannot be said that he has no interest in the suit schedule property. Further, the plaintiff does not object for transposing defendant No.7 as a co-plaintiff. As stated above the Trial Court on a proper consideration of facts and circumstances has allowed the applications.
12. It is well established that the Court has power under Order 1 RULE 10(2) of the C.P.C. to transpose a defendant to the category of plaintiffs. The Court can by suo-motu or on the application of any of the defendants may transpose a defendant as plaintiff. Transposition can be made to do complete justice between the parties and with a view to avoid multiplicity of proceedings. I am of the view that for a complete and effectual adjudication upon the question involved in the suit and to avoid multiplicity of. proceedings, the Trial Court has allowed the applications transposing 7th defendant as co-plaintiff. The Trial Court was also right in allowing the application for amendment of the plaint.
13. In the case of KIRAN TANDON v. ALLAHABAD DEVELOPMENT AUTHORITY AND ANR., 2004 AIR SCW 2089 the Hon'ble Supreme Court while approving the order of the High Court in allowing the application for transposition has held as follows:
"Therefore, in order to avoid any technical objection and in the interest of justice it was expedient that the State of U.P. may be transposed as Appellant No. 2 in the appeal. The High Court held that as the ADA and State of U.P. were disputing the title of the claimant to receive the entire amount of compensation and State of U.P. having already been impleaded as proforma respondent in the appeal the interest of justice required that it should be transposed as Appellant in the appeal. Sub-rule (2) of Order 1, Rule 10 lays down that 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. It is well settled that the Court has power under sub- rule (2) Order 1, Rule 10 CPC to transfer a defendant to the category of plaintiffs and where the plaintiff agrees, such transposition should be readily made. This power could be exercised by the High Court in appeal, if necessary, suo motu to do complete justice between the parties. This principle was laid by the Privy Council in BHUPENDRA NARAYAN SINHA v. RAJESHWAR PRASAD, AIR 1931 PC 162 and has been consistently followed by all the Courts. In fact the pleas raised by the ADA and State of U.P. were identical and in order to effectuate complete adjudication of the question involved in the appeal it was in the interest of justice to transpose State of U.P. as appellant No.2 in the appeal. We are therefore, of the opinion that no exception can be taken to the course adopted by the High Court in transposing the State of U.P. as appellant in both the appeals."
The aforesaid decision fully supports the case of the respondents 1 and 3.
14. In the case of SURYA DEV RAI v. RAM CHANDER RAI AND ORS., the Apex Court has held that supervisory jurisdiction is not available to be exercised for indulging in re-appreciation or evaluation of evidence or correcting the errors for drawing inference like a Court of appeal. It is further held as follows:
"Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of. law, and (ii) a grave injustice or gross failure of justice has occasioned thereby."
15. In the case of RANJITH SINGH v. RAVIPRA-KASH, it is held that to be amenable to correction in certiorari jurisdiction, the error committed by the Court or authority on whose judgment the High Court was exercising jurisdiction should be an error which is self evident. An error which needs to be established by lengthy and complicated arguments or by indulging a long drawn process of reasoning cannot be an error available for correction by writ of certiorari. It is also held that if it is reasonably possible to form two opinions on the same material, the finding arrived at one way or the other cannot be called a patent error.
16. I am of the view that the order impugned does not call for interference under Articles 226 and 227 of the Constitution of India. Accordingly, these Writ Petitions are rejected.
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