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2005 DIGILAW 714 (AP)

Dilip Kumar Renapurkar v. Vivek Pandav

2005-08-04

L.NARASIMHA REDDY

body2005
( 1 ) BOTH the revisions are filed by the plaintiff in O. S. No. 993 of 1996,on the file of the Court of V Senior Civil Judge, City Civil Courts hyderabad. Originally the suit was filed against respondents 4 to 8 herein, as defendants 1 to 5 for the relief of partition. Subsequently, respondents 1 to 3 herein got themselves impleaded, as defendants 6 to 8, by filing an application under Order 1 Rule 10 c. P. C. At a later point of time, respondents 1 to 3 filed l. A. No. 1676 of 2002 for transposing them as plaintiffs 2 to 4. The trial court allowed the same, through its order, dated 28-3-2003. C. R. P. No. 5660 of 2003 is filed against it. ( 2 ) CONSEQUENT upon the respondents 1 to 3 being transposed as plaintiffs, they filed l. A. No. 1564 of 2003, seeking amendment of the plaint, on certain aspects. It was resisted by the petitioner herein. The trial court allowed the I. A. , through order dated 2-7-2004. C. R. P. No. 5372 of 2004 arises out of it. ( 3 ) SRI B. Venkata Rama Rao, Learned counsel for the petitioner, submits that once the respondents 1 to 3 got themselves impleaded and the suit being onefor partition, it was open to them to take any stand, be it in support of the existing defendants, or the plaintiffs, or partly, in both ways, and that there was no justification or necessity, to get themselves transposed as plaintiffs. He submits that the plaintiff is always the master of the suit, and the only exceptional circumstances, when a defendant can be transposed, as a plaintiff, is where there exists similarity and unity of interest, with the plaintiff. It is also his contention that the plaint, as on to-day, is the exclusive pleading of the petitioner, and it cannot be permitted to be amended by another party. ( 4 ) SRI M. P. Ugle, learned counsel for contesting respondents, on the other hand, submits that the petitioner deliberately omitted to implead the respondents 1 to 3, in the suit, at the initial stage, as well as an important item of property, at Lathure. ( 4 ) SRI M. P. Ugle, learned counsel for contesting respondents, on the other hand, submits that the petitioner deliberately omitted to implead the respondents 1 to 3, in the suit, at the initial stage, as well as an important item of property, at Lathure. He submits that on coming to know that, his clients got themselves impleaded in the suit, and with a view to bring all the properties into the sphere of partition, it became necessary for them, to get themselves transposed, as plaintiffs, and to seek amendment of the plaint. He submits that no exception can be taken to the orders under revision. ( 5 ) THE array of the parties, in both the c. R. Ps, is identical. The petitioner, respondents 7 and 8 and husband of respondent No. 4 are the sons of late marthanda Rao. They had a sister, by name chandrakala, who is the mother of respondents 1 and 2 and wife of respondent no. 3. The petitioner filed the suit for partition, in respect of one item of property at hyderabad. He pleaded that a prior partition took place in the family, and further partition in terms thereof, was required to take place between some of the brothers. The trial of the suit is in progress. The respondents 1 to 3 got themselves impleaded, by filing I. A. No. 1143 of 1998. To this extent, there cannot be any plausible objection. The question as to whether the respondents 1 to 3 are entitled for any share, or whether any other property, in addition to the one shown in the suit schedule, is laible for partition, is a matter to be decided in the suit. ( 6 ) RESPONDENT 1 to 3 filed I. A. No. 1676 of 2002, to transpose them as plaintiffs. They pleaded that the petitioner is likely to collude with respondent 4 to 6. The application was resisted by the petitioner, on several grounds. It was allowed, by taking exception to the attitude exhibited by the petitioner herein, in not impleading respondents 1 to 3. In this regard, it needs to be observed that it is always the prerogative of the plaintiff in a suit, to choose the persons, against whom he intends to claim relief and to decide whether to proceed with it, or not. In this regard, it needs to be observed that it is always the prerogative of the plaintiff in a suit, to choose the persons, against whom he intends to claim relief and to decide whether to proceed with it, or not. No person can be added contrary to his will, except where his interests are adversely affected. Even in such cases, the rare occasion to implead a third party, as the plaintiff or to transpose an existing defendant, as one of the plaintiffs, would arise only when there is no conflict between such parties and all of them plead and claim relief, in the same tone and tenor. ( 7 ) THE very fact that the respondents 1 to 3 took exception to the conduct and attitude of the petitioner, discloses that not only there did not exist any unity of interest, but a clear conflict of interest was pleaded. Under those circumstances, there was absolutely no justification for the trialcourt, in transposing the respondents 1 to 3, as plaintiffs 2 to 4. Further, the only justification, pleaded by the respondents 1 to 3, was that the plaintiff may not proceed with the suit and may compromise the matter, with some of the defendants. It should not be forgotten that it is the petitioner, who filed the suit, and the respondents 1 to 3 did not feel the necessity of pressing for any partition. Even assuming that the petitioner agreed for a particular course of action, the respondents 1 to 3 certainly put forward their contention, at any stage of the suit. If it was found or realized that the petitioner did not proceed with the suit, it is always open to the respondents 1 to 3, or other respondents to take permission of the court to get themselves impleaded and transposed as plaintiffs, to work out their remedies. Till such occasion arises, they cannot be transposed as plaintiffs. ( 8 ) AS pointed out earlier, there may be circumstances, though rare, for transposing the defendants as plaintiffs. However, instances of the pleadings of one party being permitted to be amended by another party, are totally unknown to law. Rule 17 of order 6 C. P. C. accords permission for a party, to seek amendment of "his own pleading". ( 8 ) AS pointed out earlier, there may be circumstances, though rare, for transposing the defendants as plaintiffs. However, instances of the pleadings of one party being permitted to be amended by another party, are totally unknown to law. Rule 17 of order 6 C. P. C. accords permission for a party, to seek amendment of "his own pleading". Simply because an existing defendant has been transposed as a plaintiff the plaint does not become the pleading of a defendant who has since been transposed as a plaintiff. A similar question arose for consideration, before this court, in patchipulusu Mahalakshmi v. Nagolu ramanamma. After discussing the relevant provisions, it was held that the pleading of one party, cannot be permitted to be amended by the other. ( 9 ) FOR the foregoing reasons, both the revisions are allowed. There shall be no order as to costs. ( 10 ) THE suit was filed way back in 1996. It cannot brooke any further delay. On account of various applications filed before it, the trial court could not proceed with the matter. Now that the requisite parties are before it, the trial court shall proceed with the trial of the matter, expeditiously. It is made clearthat irrespective of the fact whether an individual is figuring as plaintiff or defendant, the trial court shall direct its attention to the principal questions, such as; (a) availability of the properties for partition, (b) the entitlement of various parties in terms of their shares; and (c) the truth or otherwise of the prior partition, and if so, its impact on the rights of the parties. ( 11 ) IF the issues framed by the trial court are already on these lines, it shall not be necessary to reframe, or amend the issues if there is any variance, in this regard, the trial court shall reframe the issues and proceed with the matter, as expeditiously as possible, and dispose of the suit by the end of 2005. There shall be no order as to costs.