PARSURAM MAHABHOI v. JANAKI DEI AND DAITARI JENA AND OTHERS
1990-11-22
ARIJIT PASAYAT
body1990
DigiLaw.ai
JUDGMENT : A. Pasayat, J. - Prayer for transposing some of the co-plaintiffs as pro forma defendants having been refused, the present revision application has been filed. 2. The petitioners are plaintiff Nos. 1, 2, 5 and 7 in Title Suit No. 185 of 1980 of the Court of Additional Subordinate Judge, Cuttack, The suit is one for specific performance of contract allegedly entered into by the present petitioners and pro forma opposite party Nos. 5, 6 and 7 with defendant No. 1 opposite party No, 1. During the pendency of the suit, an application was filed for transposition of the aforesaition forma opposite parties who were plaintiff Nos. 3, 4 and 6 in the suit. The application was resisted by the defendants on, the ground that on 15-4-1985 the suit had already been dismissed under Order 9, Rule 10, CPC (in short 'CPC')by operation of law for man-attendance of concerned plaintiffs on 15-4-85. Several other ground; on the merit of the suit were also indicated. After hearing the parties the application for transposition was rejected on the ground that there was no material to show that plaintiff Nos. 3, 4 and 6 were not interested and/or they had been gained over by the defendants, ft is relevant to mention here that the learned. Subordinate Judge proceeded on the basis that the application was filed on the ground that plaintiff Nos 3, 4 and 6 were not interested in the proceeding and. had been gained over by the defendants. He came to-conclude that if the petition is allowed, the nature of the case would take a different mode. By these observations, the petition was rejected, 3. Pursuant to notice, opposite party Nos. 2 to 4 have entered appearance in the case but did not appear when the matter was called for hearing On perusal of the impugned order and the records, I find that the learned Subordinate judge has erroneously believed that plaintiff Nos. 3, 4 and 6 were sought to be transposed on account of their non-interest and their having been gained over by the defendants. Such a plea does not at all appear to have been taken by the plaintiffs-petitioners. However, it has not been indicated by the learned Subordinate judge as to how the nature of the suit would take a different turn.
Such a plea does not at all appear to have been taken by the plaintiffs-petitioners. However, it has not been indicated by the learned Subordinate judge as to how the nature of the suit would take a different turn. On the contrary, in a suit for specific performance of contract it is imperative and essential that all the joint promisees should be before the Court. However, it is not essential that they must join as plaintiffs and when one of such joint promisees files a suit for specific performance the others can be made defendants. Where some of the joint promisees have been added as defendants, they can be transposed as plaintiffs if they intend to assert their right under the contract. Such transposition is possible and permissible. As observed by the Privy Council in AlR 1939 PC 170 ; Monghibai v. Cooverji Umersay if one or more of several persons are jointly interested, they can bring an action in respect of joint property and-if their right to sue is challenged, can amend by joining their co-contractors as plaintiffs if they will consent or as co-defendants if they will not. Similar view has also been taken by the Calcutta and the Allahabad High Courts in Smt. Nirmala Bala Dasi and Another Vs. Sudarsan Jana and Others, and Jagdish Singh and Others Vs. Ram Lal and Others respectively. The decision of the learned Subordinate Judge is, therefore, not sustainable and the same is hereby set aside. The pro forma opposite parties shall be added as pro forma defendants 5, 6 and 7 in the suit. The revision is accordingly allowed. Final Result : Allowed