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Uttarakhand High Court · body

2010 DIGILAW 507 (UTT)

Tejram v. Rakesh Kumar

2010-07-22

TARUN AGARWALA

body2010
JUDGMENT Tarun Agarwala, J. Heard Mr. Nagesh Agarwal, the learned counsel for the petitioner and Mr. Neeraj Garg and Mr. Ramji Srivastava, the learned counsel for the respondents. 2. The plaintiff respondent no.6 filed a suit for injunction praying that the defendant nos.1 to 5 should be restrained from interfering in the joint possession of respondent no.6 and the proforma defendant no.7. It is alleged that during the pendency of the suit, the plaintiff sold his share of the property to defendant nos.1 to 5 and, thereafter, filed an application for withdrawal of the suit. The proforma defendants nos.6 and 7 namely, the petitioners filed an application under Order 23 Rule 1-A read with Order 1 Rule 10 of the C.P.C. praying that the said defendants may be transposed as plaintiffs and may also be permitted to continue with the suit. The application of the plaintiff was allowed and the suit was dismissed as withdrawn and the application of the petitioners for transposition as plaintiff was rejected. The petitioners, being aggrieved by the said order, has filed the present writ petition. 3. The learned counsel for the petitioners submitted that admittedly the property was ancestral and joint between the plaintiff and the petitioners and that the plaintiff could not have sold the property to defendant nos.1 to 5 unless the ancestral property was partitioned by metes and bounds, which in the present case, had not been done. The learned counsel submitted that even though, the petitioners were arrayed as proforma defendants, they had filed their written statement claiming therein that they should be granted similar relief as claimed by the plaintiff and, therefore, the learned counsel for the petitioners submitted that the application for transposition as plaintiffs had rightly been filed and ought to have been allowed by the court below. For facility, the provision of Order 23 Rule 1 and Rule 1-A of the C.P.C. is extracted hereunder:- “1. Withdrawal of suit or abandonment of part of claim. For facility, the provision of Order 23 Rule 1 and Rule 1-A of the C.P.C. is extracted hereunder:- “1. Withdrawal of suit or abandonment of part of claim. - (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in Rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the court. (2) An Application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other, person. (3) Where the court is satisfied,— (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. (4) Where the plaintiff— (a) abandons any suit or part of claim under sub-rule (1); or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. (5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs. 1-A. When transposition of defendants as plaintiffs may be permitted. (5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs. 1-A. 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 I, 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.” 4. A perusal of the aforesaid provisions indicate that the plaintiff may at any time after the institution of the suit could abandon his suit and, for that purpose, an application for leave is required to be filed. The court, upon being satisfied could permit the plaintiff to withdraw the suit or part of the claim with or without liberty to file afresh. Order 23 Rule 1-A of the C.P.C. was inserted by the Code of Civil Procedure by Amending Act, 1976 wherein the power to withdraw the claim by the plaintiff was curtailed to a certain extent and a liberty was given to the defendant to apply and be transposed as a plaintiff under Order 1 Rule 10 C.P.C. in the event the court considered that the applicant had a substantial question to be decided as against the other defendants. 5. In the present case, the submission of the learned counsel for the petitioners is that the property was joint and had not been partitioned by metes and bounds and, therefore, the plaintiff could not have executed a sale deed in favour of existing defendants nos.1 to 5. Consequently, the petitioners should have been transposed as plaintiffs and should have been allowed to contest and pursue the suit against the defendant nos.1 to 5. In support of his submission, the learned counsel for the petitioners placed reliance upon a decision of the Ranchi Bench in the case of Md. Muzahid Vs. John Wilson Zedak & another AIR 1989 Patna 2, wherein the court held that one of the reasons for inserting Rule 1-A of Order 23 was to do away with multiplicity of suit and to shorten the litigation. Muzahid Vs. John Wilson Zedak & another AIR 1989 Patna 2, wherein the court held that one of the reasons for inserting Rule 1-A of Order 23 was to do away with multiplicity of suit and to shorten the litigation. The court also held that the right of the plaintiff to walk out of a suit by abandoning it or withdrawing from suit had been curtailed. 6. There is no dispute with the aforesaid proposition propounded in the aforesaid judgment. The question here is whether the plea raised by the petitioners could be claimed if the petitioners are transposed as plaintiffs. In my opinion, the answer is ‘no’. The plaintiffs had claimed a relief of permanent injunction restraining the defendant nos.1 to 5 from interfering in the possession of the plaintiffs alongwith the proforma defendants now the petitioners. The question of execution of a sale deed by the plaintiff in favour of defendant nos. 1 to 5 was not an issue to be decided in the suit filed by the plaintiff. This is a subsequent event and even if the petitioners for the sake of argument are transposed as plaintiffs, the relief which the petitioners are alleging, namely, the relief that the plaintiff had no right to transfer the joint property in favour of the defendant nos.1 to 5 cannot be granted since only the petitioners have claimed a relief of transposition and has nowhere, claimed the relief that the plaintiff should be transposed as a contesting defendants. In the light of the aforesaid, this court does not find any error in the impugned order. The writ petition fails and is dismissed. It is open to the petitioners to take appropriate action in accordance with law.