In this civil revision petition, the fair and decreetal orders, dated 14.02.2017, made in I.A.No.70 of 2016 in O.S.No.15 of 2010, on the file of the District Judge, Sivagangai, are impugned.
2. It is found that the suit has been laid by the plaintiffs for partition, on the footing that the suit properties are the ancestral properties of one Rengasami Servai and he had died in the year 1995. It is further found that according to the defendants, the suit properties are the separate properties of one of the sons of Rengasami Servai, namely, Chellam Servai.
3. While the contentions between the parties remaining as such, it is found that the suit had been taken up for trial and at that stage of the matter, an application has been preferred by the plaintiffs, under Order XXIII Rule 1-A of the Code of Civil Procedure, to transpose the second plaintiff, namely, Balakrishnan as the 23rd defendant and according to them, the second plaintiff being the cousin of the first defendant and that the second plaintiff married the sister of the first defendant and as such, he is having secret contacts with the first defendant and inasmuch as the second plaintiff has purchased an extent of 30 Cents in Survey No.452/2 from the legal heirs of Chellam Servai and also other properties under a registered sale deed, dated 15.12.2008, which, according to the plaintiffs, they are unaware when the suit had been laid and further, according to them, inasmuch as the second plaintiff in turn had sold the said property to one D.Pradeep, under a registered said deed, dated 11.10.2010, and consequently, the said D.Pradeep, having filed an application in I.A.No.30 of 2016, to get himself impleaded in the suit proceedings as the 22nd defendant and the same having been entertained by the Court below, and according to the plaintiffs, inasmuch as the above acts of the second plaintiff had to be taken against the interest of the remaining plaintiffs i.e., by his act of purchasing a portion of the suit properties from the legal heirs of Chellam Servai, thereby admitting the absolute title of Chellam Servai and in such view of the matter, the further continuance of the suit by the plaintiffs along with the second plaintiff being impossible and as the above said developments had come to the knowledge of the plaintiffs only during the course of cross-examination when the sale deed, dated 15.12.2008, had come to be marked, it is the case of the plaintiffs that in the interest of justice and to avoid embarrassment, the second plaintiff should be transposed as 23th defendant and the suit should be continued accordingly.
4. The said application was resisted by the defendants contending that the suit having been taken up for trial and the evidence of P.Ws.1 and 2 having been completed, the case of the plaintiffs that they had come to know about the sale deed, dated 15.12.2008, only thereafter and not at the time of laying of the suit as such cannot be accepted. In fact, 12th defendant had purchased certain items of the suit properties on 23.06.2005 and prior to the filing of the suit, the second plaintiff had purchased the remaining items of the suit properties in Survey No.452/1, from defendants 2 to 8 and the plaintiffs having suppressed the same and joining with the second plaintiff having come to lay the suit cannot now feign ignorance about the said transaction and in such view of the matter, the present cause given by the plaintiffs for transposing the second plaintiff as 23rd defendant is not sustainable in law and hence, the application is liable to be dismissed.
5. The Court below, on a consideration of the rival contentions put forth by the respective parties, finding that the reasons given by the plaintiffs for transposing the second plaintiff as 23rd defendant are not sufficient to entertain the request made by the plaintiffs as the said reasons do not attract the above mentioned provision of law, resultantly, disallowed the application preferred by the plaintiffs by the impugned order. Challenging the same, the present civil revision petition has been preferred.
6. It is argued by the learned counsel for the petitioner that considering the fact that the second plaintiff had purchased certain items of the suit properties from the legal heirs of Chellam Servai, thereby impliedly admitting the title of Chellam Servai and subsequently, the said property had also been alienated by him to one D.Pradeep, by way of the sale deed, dated 11.10.2010, and further in view of the position that the said D.Pradeep had also come to be impleaded as 22nd defendant in the suit proceedings, according to him, if the second plaintiff is further allowed to prosecute the suit along with the remaining plaintiffs, that will create only embarrassment and confusion for the other plaintiffs to continue the suit properly and in such view of the matter, the reasons given for transposition are acceptable and in accordance with law and hence, the Court below had erred in rejecting the application. Per contra, it is argued by the learned counsel for the respondents that in view of the alleged transaction put forth by the plaintiffs for seeking transposition had been made even prior to the institution of the suit and hence, the case of the plaintiffs that they have come to know about the said fact after the evidence has been adduced in the matter is false, hence, the present application for transposition is nothing but an attempt on the part of the plaintiffs to further delay the proceedings and hence,the same being not sustainable in the eyes of law, the Court below had rightly dismissed the application and hence, no interference is called for with reference to the same.
7. In support of his contentions, the learned counsel for the petitioner has placed reliance upon the decision reported in 2013 (3) MWN (Civil) 353 [N.Anand vs. N.Meena and another]. A perusal of the said decision would go to show that in a fitting case, the Court could transpose the plaintiff as the defendant and the said relief could be entertained by making a purposive interpretation of the relevant provisions of law read with Section 151 of the Code of Civil Procedure and therefore, it could be seen that when situation so arises, it could be seen that on the basis of the above said authority, even the transposition of the plaintiff as the defendant could be ordered and therefore, on the footing that Order XXIII Rule 1-A does not direct the transposition of the plaintiff as the defendant and hence, the plaintiff's request cannot at all be accepted as such cannot be straightaway countenanced. In sofar as this case is concerned, no doubt, the plaintiffs have pleaded certain sale transaction said to have been effected by the second plaintiff, even prior to the institution of the suit for transposition. Thus, as rightly argued, it cannot be straightaway accepted that the plaintiffs are unaware of the said sale transaction. Be that as it may, considering the fact that the plaintiffs have pleaded that the said transaction has turned against their case and further, when it is found that thereafter, the second plaintiff had conveyed the said property to one D.Pradeep and in turn the said D.Pradeep has also been impleaded as a party to the proceedings, in such view of the matter, considering the situation now prevailing between the plaintiffs vis-a-vis the second plaintiff as such, in my considered opinion, the further continuance of the suit by the plaintiffs along with the second plaintiff would not be proper and also in the interest of the plaintiffs and also in the interest of the proceedings and the same would lead to unnecessary embarrassment and confusion amongst the parties and in such view of the matter, making a purposive interpretation of relevant provisions of law as adumbrated in the above cited decision, in the interest of justice, it is found that the request of the plaintiffs can be accepted and by doing so, there would be no serious prejudice or hardship to the defendants and hence, the impugned order of the Court below is liable to be set aside.
8. Accordingly, the fair and decreetal orders, dated 14.02.2017, made in I.A.No.70 of 2016 in O.S.No.15 of 2010, on the file of the District Judge, Sivagangai, are aside and consequently, I.A.No.70 of 2016 is allowed. Resultantly, the civil revision petition is allowed. Considering the facts and circumstances of the case, there is no order as to costs. Consequently, the civil miscellaneous petition is closed.
To:
The District Judge, Sivagangai.
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