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2006 DIGILAW 265 (AP)

BUTTI VEERPAL v. K. VIJAYA LAXMI

2006-02-28

G.ROHINI

body2006
( 1 ) THIS revision petition is directed against the order dated 28-11-2005 in LA. No. 1804 of 2005 in O. S. No. 13 of 2001 on the file of the Court of i-Additional District Judge, Karimnagar. ( 2 ) THE revision petitioners are the defendants 1 to 11 in the suit. The 2nd respondent herein is the plaintiff, who filed the suit seeking a decree for partition claiming l/8th share in the suit schedule properties contending that the said property belongs to their late father B. Rajaram, The respondent no. l, respondents 3 and 4 herein are the defendants 12, 13 and 14 respectively, in the suit. ( 3 ) THE defendants 12 to 14 filed a common written statement claiming their l/8th share each in the suit schedule properties. The defendants 1 to 11 contested the suit claim disputing the entitlement of the plaintiff and the defendants 12 to 14 on the ground that the suit schedule properties are their exclusive properties. ( 4 ) AFTER the issues were settled, while the suit was coming up for trial, the defendant No. 12/the 1st respondent herein filed I. A. No. 1804 of 2005 under Order 1 rule 10 of C. P. C. to transpose her as plaintiff in the suit and permit her to proceed with the suit. In the affidavit filed in support of the said application, it was pleaded that the plaintiff failed to show any interest to proceed with the suit and that she had strong reason to believe that the plaintiff was won over by the contesting defendants 1 to 11. Though the said application was opposed by the defendants 1 to 11, the court below by order dated 28-11-2005 allowed the application and permitted the defendant No. 12 to be transposed as 2nd plaintiff in the suit. The said order is under challenge in this revision petition by the defendants 1 to 11. ( 5 ) I have heard the learned Counsel for the petitioner and perused the material on record. ( 6 ) THE learned Counsel for the petitioner while referring to Order 23 rule 1-A of C. P. C. contends that transposition of defendant as plaintiff is permissible only when the plaintiff withdraws or abandons the suit filed by her. ( 5 ) I have heard the learned Counsel for the petitioner and perused the material on record. ( 6 ) THE learned Counsel for the petitioner while referring to Order 23 rule 1-A of C. P. C. contends that transposition of defendant as plaintiff is permissible only when the plaintiff withdraws or abandons the suit filed by her. In support of his submission, the learned Counsel placed reliance upon Ahmed Abdul Saleem v. Ahmed Abdul Sameer, 2002 AIHC 2310, m. S. Hoda v. Dipti Mukherjee, 2005 aihc 2743 (Jharkhand) and R. Chandraiah v. R. Yadagiri, 2003 (1) APLJ 25 (SN ). ( 7 ) ORDER XXIII Rule 1 of C. P. C. provides for withdrawal of a suit or abandonment of part of suit claim. Where a suit is withdrawn or abandoned by a plaintiff under Rule 1 of Order 23 of C. P. C. it is open to a defendant to apply under Rule 1-A of Order XXIII of C. P. C. to be transposed as plaintiff under Order 1 Rule 10 of C. P. C. , in which event the Court has to consider such application having due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants. ( 8 ) RULE 1-A of Order XXIII of Civil procedure Code runs as under :"1a. When transposition of defendants as plaintiffs may be permitted. Where a suit is withdrawn or abandoned by a 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. " ( 9 ) ON a plain reading of Rule 1-A of Order 23 of C. P. C. , it is clear that the said provision applies only where a suit is withdrawn or abandoned by a plaintiff with the leave of the Court as provided under Rule 1 of Order 23 of C. P. C. However, the enabling provision for transposition of the parties is only Order 1 rule 10 of CPC under which the Court is conferred with ample power to order transposition of the parties if it is necessary for a complete adjudication upon the question involved in the suit. ( 10 ) HENCE, the contention of the learned Counsel for the petitioner that transposing of defendant as plaintiff can be ordered only where the suit is abandoned or withdrawn by the plaintiff is without any substance and cannot be accepted. In all the decisions cited by the learned Counsel for the petitioner, the plaintiffs therein had withdrawn the suits. Hence, the principle of law laid down in the particular facts and circumstances of the said cases does not attract to the case on hand. ( 11 ) AS noted above in the instant case, the defendant No. 12/lst respondent herein claimed 1/8th share and, admittedly, her position is the same as that of the plaintiff. The defendants 1 to 11 are contesting the suit and disputing the entitlement of the plaintiff and the defendants 12 to 14 are contending that the suit schedule properties are their own properties. In the circumstances, when the plaintiff failed to prosecute the suit properly and when the defendant No. 12 apprehended that the plaintiff was won over by the contesting defendants, the Court below was justified in permitting the defendant No. 12 to be transposed as 2nd plaintiff in exercise of powers under Order 1 Rule 10 of C. P. C. ( 12 ) HAVING regard to the facts and circumstances of the case, I am of the opinion that the transposition of the 12th defendant as a co-plaintiff is necessary not only for a complete adjudication of the questions involved in the suit but also to avoid multiplicity of proceedings. Such transposition will not result in any prejudice to any of the other defendants much less to the plaintiff. ( 13 ) HENCE, the order under revision, which is in accordance with the settled principles of law, does not warrant interference by this Court in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India. The civil revision petition is accordingly dismissed. No costs.