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2008 DIGILAW 945 (DEL)

Gautam Dev Shourie v. Vijay Shourie

2008-09-29

HIMA KOHLI

body2008
JUDGMENT Hima Kohli, J. 1. The present application is filed by the defendants No. 4 to 6, sisters of defendant No. 1 praying inter alia for their transposition as plaintiffs in view of the demise of the plaintiff No. 1 who instituted the present suit. The same was filed by the applicants on 7.4.2005 and notice was issued thereon to the non-applicants on 20.4.2005. Within two weeks thereafter i.e. on 29.4.2005, an application was filed by the original plaintiff under Order 23 Rule 1 CPC, being IA No. 3368/2005 praying inter alia for withdrawal of the suit in view of the fact that a compromise was arrived at between the parties. The aforesaid application was allowed, vide order dated 29.4.2005, wherein it was recorded that the defendants No. 1,2 & 7 have no objection to the request made by the plaintiff for withdrawal of the suit. It is pertinent to note that the aforesaid application was duly supported by the affidavits of the plaintiff and the defendant No. 1. Accordingly, the application was allowed and the suit was dismissed as withdrawn. 2. On the same date, the present application filed by the applicants/defendants No. 4 to 6, was disposed of as having been rendered infructuous. It is pertinent to note that none was present on behalf of the applicants on the aforesaid date. Thereafter, the applicants filed applications for recall of the order dated 29.4.2005 and for hearing on merits of the present application, being IAs No. 7385-86/2005. The aforesaid applications were allowed, vide order dated 14.3.2008 and as a result, the suit as well as the present application, apart from two other applications, were revived. 3. Counsel for the applicants states that after notice was issued on the present application and orders dated 29.4.2005 were passed, the original plaintiff No. 1 who instituted the present suit as Karta, of the H.U.F. expired. He submits that in these circumstances, his clients who are defendants No. 4 to 6 in the present proceedings, are entitled to be transposed as plaintiffs. He further submits that the apprehension expressed by the applicants in the present application at the time of filing the same that the defendant No. 1 and the plaintiff may collusively withdraw the suit, has turned out to be true as after the filing of the present application, that is exactly what the original plaintiff and the defendant No. 1 did. He submits that the present suit being one for partition, all the parties are liable to prosecute the same in their capacity as plaintiffs. 4. Counsel for the non-applicants/defendants No. 1,2 & 7 does not dispute the position that the present suit is one for partition. He further submits that in view of the fact that prior to filing of the present application, the applicants had filed their affidavits dated 31.3.2004 before the Land Revenue Authorities giving up/releasing their shares in favour of his clients, the present application is not maintainable. 5. Counsel for the applicants on the other hand draws the attention of this Court to the order dated 25.1.2000, wherein a preliminary decree was passed by the Court for partition of the suit property. It was further held in the aforesaid order that the plaintiff had 13/32 share in the suit property, whereas the defendants had 19/32 share therein. He also states that thereafter, an application was filed by his clients jointly with the defendants, including the defendants No. 4 to 6 herein for amendment of the written statement by incorporating therein certain additional averments to the effect that the defendants No. 1 to 6 were owners to the extent of 5/8th share in the suit property and the plaintiffs were owners only to the extent of 3/8th share in the suit property. The aforesaid application was duly allowed, vide order dated 16.7.2004. 6. Counsel for the non-applicants/defendants states that the suit cannot be revived as the plaintiff has expired during the pendency of the present suit and in these circumstances the present application is liable to be rejected. 7. The aforesaid contention of the counsel for the non-applicant/ defendants is misconceived in view of the fact that the present application was filed during the lifetime of the original plaintiff. Notice on the said application was also issued on 20.4.2005. The order for seeking withdrawal of the suit by the original plaintiff was sought thereafter by filing an application, which order has been modified to the extent that the suit and the pending applications were revived, vide order dated 14.3.2008. 8. Counsel for the applicants states that even after the amendment was allowed, the original preliminary decree passed on 25.1.2000 was not sought to be modified by any of the parties. The said submission is well founded. 8. Counsel for the applicants states that even after the amendment was allowed, the original preliminary decree passed on 25.1.2000 was not sought to be modified by any of the parties. The said submission is well founded. Even if the case of the non-applicants is taken at the highest, a preliminary decree for partition of the suit premises was admittedly passed, whereunder the defendants including the applicants herein were held entitled to 19/32 share in the suit premises. 9. Having regard to the facts and circumstances of the present case, where admittedly the suit is one for partition and as per the settled law, all the parties are entitled to prosecute the suit claiming their respective shares in the suit premises, the prayer of the applicants in the application is liable to be granted. In the case of Durga Prasad v. Lal Babu Sah and Anr. reported as AIR1984Pat310 , it was held as under: 9. The law as to transposition of a defendant to the category of plaintiff is well settled. Where it is necessary for a complete adjudication of the question involved in the suit, parties may be added or transposed. But where by this Courts order, character of the suit may be altered by the addition or transposition of the intervener-defendant and the party sought to be transposed does not wish to adopt the plaintiffs case transposition can never be permitted. Similarly, if the claims are inconsistent it would not be fair for the original defendant to be asked to fight the newly added plaintiff. (See Ram Prasad v. Mt. Fulia AIR1964Pat508 , Ramaswami Reddi v. Deivasigamani Pillai AIR 1947 Mad 395). It is also well settled that Court cannot compel the original plaintiff to proceed with the suit and the intervener-defendant or any other defendant cannot be allowed to complain against such order. The said principle is also applicable to a compromise between the plaintiff and any one or more of the defendants in the suit. But where there is an affinity or identity of interests between the plaintiff and any one of the defendants the plaintiff has not the absolute right to withdraw or compromise the suit with one of the defendants if an application on behalf of other defendants having an interest in the suit is made for their transposition to the category of plaintiffs. Withdrawal of suits is also being refused where some vested rights have devolved in favour of the defendant at the point of time when withdrawal is sought (See Ajita Debi v. Hossenara Begum AIR1977Cal59 , R. Ramamurthi v. V. Rajeswararao [1973]1SCR904 , Basudeb Narayan v. Shesh Narayan AIR1979Pat73 ). The principle generally applies to a suit for partition where the plaintiff is not wholly dominus litis and the plaintiff cannot defeat the exercise of option to have a partition by other defendants by resorting to the device of withdrawing the suit. There being affinity and identity of interest in a suit for partition even if the plaintiff does not wish to prosecute that suit or to withdraw it the defendant or defendants can ask for being transposed to the array of plaintiff to have his or their share partitioned… 10. In the present case also, the character of the suit remains unaltered. It is however, a different matter that the defendants may be able to establish on merits that the transposed plaintiffs have given up their shares in the suit property or have relinquished their shares, as contended by the counsel for the defendants. This Court does not propose to make any observations on the merits of the matter at this stage as the scope of examination in the present application is fairly limited. The application for transposition is allowed. The applicants are permitted to be transposed as plaintiffs in the present suit. 11. The transposed plaintiffs shall file an amended memo of parties within one week, with an advance copy to the other side. 12. The application is disposed of. Application allowed