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2004 DIGILAW 130 (JK)

Fayaz Ahmad v. Shabir Ahmad

2004-04-30

R.C.GANDHI

body2004
1. This application has been preferred by respondent No.9 for his transposition as Revision Petitioner in Civil Revision No. 43 of 1998. 2. Petitioner and respondent no. 9 are the tenants defendants in the suit pending adjudication before the Civil Court. Landlord-plaintiff has obtained ex-parte decree for eviction of defendants-tenants. In proceedings for setting aside the ex-parte decree, revision petition has been preferred by Fayaz Ahmad one of the defendants in the suit. 3. This application for transposition has been moved on the ground that the petitioner is not taking any interest in prosecuting the petition and has virtually abandoned the proceedings which is evident from the fact that during the pendency of the proceedings, defendant No.1 died on 1.2.2003 and despite notice of the death of the respondent No. 1 as required under O.22 R10-A CPC the petitioner has not taken any steps for bringing on record the legal representatives of the deceased defendant who are: his wife and two sons. Respondent No. 10 has also expired on 14.03.2003 and no steps for bringing on record his Legal Representatives have been taken by the petitioner. Such conduct of petitioner if continues, the cause which is common to the petitioner and respondent No.9 shall not only be frustrated but defeated also. 4. I have heard learned counsel for the parties and perused the record. 5. Mr. Shah, learned counsel for the petitioner respondent No.9 has submitted that the petitioner has virtually abandoned the proceedings. In support of his plea he has drawn the attention of the Court on the interim orders passed in the petition which reveal that the petition was listed on 24.03.2003, Counsel for the revision petitioner sought time to move an application for bringing on record the Legal Representatives of the deceased respondent No. 1. Thereafter the petition was listed on 25.7.2003 but the counsel for the petitioner did not appear. It was again listed on 16.9.2003 and none appeared on behalf of the petitioner. On 30.10.2003 Mr. Tasaduq Hussain Khaja, learned counsel for the petitioner appeared and made a statement that the matter may be treated as not represented by him which means that he withdrew from the proceedings. Thereafter the petition was listed on 11.12.2003,27.02.2004. 10.03.2004 but neither the petitioner nor his counsel appeared. The Revision Petitioner has not appeared. On 30.10.2003 Mr. Tasaduq Hussain Khaja, learned counsel for the petitioner appeared and made a statement that the matter may be treated as not represented by him which means that he withdrew from the proceedings. Thereafter the petition was listed on 11.12.2003,27.02.2004. 10.03.2004 but neither the petitioner nor his counsel appeared. The Revision Petitioner has not appeared. This conduct of the revision petitioner indicates that he is not interested in prosecuting the petition and rather intends to abandon the proceedings. It is not denied that the interest of the petitioner and respondent no.9 seeking transposition is common being tenants. 6. Mr. Z. A. Qureshi, learned counsel for the deceased-respondent No. 1 landlord whose legal Representatives have not been brought on record, has submitted that there is no provision of law to transpose the respondent as petitioner in proceedings of Civil Revision. Apparently there is no such direct provision of law to transpose a respondent as petitioner in revision petition. Mr.Shah, learned counsel has invited the attention of the court on O.23 R. I-A CPC which deals with the transposition of the defendant as plaintiff and reads as: "When transposition of defendants as plaintiffs may be permitted: - where a suit is withdrawn or abandoned by 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." 7. This provision of law is not applicable in revision proceedings and being applicable in suits; for the simplicitor reason that the revision is not continuation of the suit. There are other provisions of law contained in the Code of Civil Procedure such as Section 141 and 151 CPC which vest power to the Court to take care of the interest of the parties where there is no expressly codified law to deal with such situation. Section 151 CPC gives inherent powers to the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. Here in the proceedings the petitioner is not coming forward to bring on record the Legal Representatives of the deceased defendant No.1 and 10 despite having notified in terms of O.22 R 10-A CPC. Here in the proceedings the petitioner is not coming forward to bring on record the Legal Representatives of the deceased defendant No.1 and 10 despite having notified in terms of O.22 R 10-A CPC. This situation cannot be permitted to continue and the cause of the parties has to be decided. If Legal Representatives are not brought on record the proceedings will die down and the respondent No.9 being the co-tenant shall be directly affected and in consequence thereof he shall be evicted from the tenanted premises. 8. Section 141 CPC provides that the procedure provided in this regard to suits shall be followed as far as it can be made applicable in all proceedings in any Court of civil jurisdiction. While dealing with the revision petition under section 115 of CPC the Court is exercising the power of civil jurisdiction, therefore, the provision of transposition can be made applicable to the revision proceedings. Besides this the Court has been vested with inherent power u/s 151 CPC to be exercised in such situations for the ends of justice as contemplated by the Legislature. 9. The transposition of a party can be made even in writ proceedings invoking O.I R. 10 CPC. While dealing with the proposition of transposition the Division Bench of this Court in case titled "Baldev Raj Gupta Vs. Jaswant Singh" reported in AIR 1978 JK 81 observed as under: "At the outset, Shri S.P.Gupta, appearing for respondent No. 1 raised the contention that transposition of the parties can be ordered only under O. 1 R. 10 CPC. That Order does not apply to writ proceedings much less to an appeal against the judgment rendered in writ proceedings. It is submitted that in view of this, the Court has got no power to order transposition of the State as appellant in these appeals. I am afraid this contention is not well founded, in as much as the principle underlying O.1 R. 10 CPC is applicable to writ proceedings as well. The High Court while exercising extra-ordinary powers of writ jurisdiction is a Court of civil jurisdiction and the provisions of CPC do apply to writ proceedings. I am afraid this contention is not well founded, in as much as the principle underlying O.1 R. 10 CPC is applicable to writ proceedings as well. The High Court while exercising extra-ordinary powers of writ jurisdiction is a Court of civil jurisdiction and the provisions of CPC do apply to writ proceedings. In AIR 1968 Gujarat 202 a Division Bench of that Court has laid down the view that the High Court issuing a writ of Certiorari is a court of civil jurisdiction within the meaning of S. 141 CPC, and, therefore, the rules engrafted in the Code do apply to writ proceedings in the High Court. Again in AIR 1967 Calcutta 275 a Division Bench of that Court held that S. 141 of the CPC is directly attracted to an applicable under Article 226 of the Constitution and so such provisions of the Civil P.C. as can be suitably apply to writ proceedings are applicable to such proceedings. The above mentioned two cases dealt with the question relating to abatement and substitution of legal representatives of a deceased party under O.22 of the Code. It is, therefore, held that 0.1 Rule 10 CPC applies to writ proceedings and there is no bar for the Court to consider the question of transposition of the respondent as an appellant in an appeal against the judgment rendered in writ petition. The contention advanced is, therefore, over ruled." 10. What is required to be seen is that while directing transposition of the party the Court should be prima facie satisfied about the bonafides of the applicant seeking transposition, the plausibility of the applicants claim and genuineness of his interest in the litigation. The bonafides of the applicant are apparent as the proceedings of petition have been stalled by the conduct of the revision petitioner. He is not taking any steps for bringing on record the Legal Representatives of deceased respondent No. 1 and 10. His counsel has withdrawn from the proceedings and the petitioner is not appearing before the Court. It shows that the petitioner is least interested for prosecution of the Revision Petition and by conduct has abandoned the proceedings. He is not taking any steps for bringing on record the Legal Representatives of deceased respondent No. 1 and 10. His counsel has withdrawn from the proceedings and the petitioner is not appearing before the Court. It shows that the petitioner is least interested for prosecution of the Revision Petition and by conduct has abandoned the proceedings. So far as plausibility of the applicants claim and genuineness of the interest in the litigation is concerned, respondent No.9 and the petitioner have common cause being tenant and the disposal of the proceedings, in any manner, shall directly and simultaneously affect both of them equally. There is no conflict of interest rather they have a joint structure of the cause. 11. For the aforesaid reasons, I am satisfied that the respondent No.9 shall be transposed as a Revision Petitioner invoking power under section 141 C PC read with O.I R. 10 CPC. Therefore, the application is allowed and the respondent No.9 is transposed as revision petitioner. 12. CMPNo.307/2001 is also disposed of wherein the petitioner has submitted his no objection if respondent No.9 is transposed as petitioner in the revision petition.