The petitioners are defendants 1 and 2 in O.S.No.4434 of 2000 on the file of the XII Assistant Judge, City Civil Court, Chennai. The first respondent filed the suit for Partition and separate possession of 1/5th share in the 'A' and 'B' Schedule properties. Pending trial of the suit, at the instance of the defendants 5 to 7 to implead them in the suit, who are sons of the plaintiff, as parties to the suit, they were impleaded as such. The application for impleading them as defendants 5 to 7 was strongly opposed by him and the same was dismissed on merits and the revision, challenging the said order was allowed by the High Court. Presently, they are ranked as defendants 5 to 7. The first respondent/plaintiff filed an application under Order 1 Rule 10 of C.P.C. to transpose the defendants 5 to 7 as plaintiffs 2 to 4 alleging in the affidavit that he purchased the suit properties benami in their names. As defendants 5 to 7 are his sons, the petitioner has not claimed any relief against them and they want to engage same advocate to protect their interest. Hence the petition may be allowed.
2. In the counter filed by the respondent No.1 and 2, it is stated that unless the plaintiff has abandoned or withdrawn the suit as regards the proposed parties, they could not be transposed as plaintiffs under Order 1 Rule 10 of C.P.C. The petitioner has no locus standi to maintain the application under Order 1 Rule 10 of C.P.C. In a partition suit all the parties are entitled to relief of a just and valid partition irrespective of the fact whether they are arrayed as plaintiff or defendant. If they were transposed as prayed for by the plaintiff, it will change the character of the suit and the valuable rights accrued by the defendants are likely to be affected. Hence the petition has to be dismissed.
3. The learned XII Assistant Judge, City Civil Court, Chennai, allowed the application by observing that defendants 5 to 7 appeared and stated that they had no objections to their being transposed as plaintiffs, that even if they continued as defendants they would file written statement only in support of the plaintiff and that the plaintiff and the defendants 5 to 7 have no conflicting interest, who are sailing together.
4. Mr. G.R.S. Chander Rao, learned counsel for the petitioner would submit that transposing defendants 5 to 7 as plaintiffs would cause great hardship to the defendants and the nature and character of the suit will also get altered and there is no need for transposing them as prayed for.
5. Arguing on the other side of the coin, Mrs. S.L. Kalavathy, learned counsel for the first respondent contends that since it is a suit for partition, every party, whatever may be his rank has to be considered as a plaintiff and transposition of sons of plaintiff as plaintiffs would not cause any harm to the defendants and there is no scope for alteration in the nature of the suit.
6. It is appropriate to extract Order 23 Rule 1A of C.P.C. which reads as follows:
"1-A. When transposition of defendants as plaintiffs may be permitted:- Where a suit is withdrawn or abandoned by a plaintiff under Rule1, 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."
7. In order to proceed with the case, Order 23 Rule 1 should be complied with, which envisages that at any time after the institution of suit, the plaintiff may against all or any of the defendants to suit abandon a part of his claim. Any of these conditions has to be fulfilled before seeking relief under Order 23 Rule 1A. Defendants 5 to 7 are none other than the sons of the plaintiff and the plaintiff has categorically stated that he has purchased the suit property binami in their names and that he is not having any conflict of interest with them and that he does not claim any relief. It is also contended that same advocate has to appear for father and sons. The above said contentions are acceptable for the reason that same advocate could not appear for the plaintiff and some of the defendants; that even if defendants 5 to 7 were to file written statement, they would only support the claim of the plaintiff; that the plaintiff and his sons do not have any conflict of interest among them and that no relief is being prayed as against the defendants 5 to 7.
8. Adverting to the statutory requirement, the claim of the plaintiff may be treated that he abandons his claims as against the defendants 5 to 7 as per the allegations in the affidavit, further they have also appeared before the Court and expressed no objection for their impleadment as plaintiffs.
9. In this context, learned counsel for the petitioner would draw attention of this Court to a decision of the Rajasthan High Court in AIR 2008 (NOC) 1481 (RAJ.) [Devendra Singh v. Additional District Judge, (Fast Track) No.7, Jaipur & Others] wherein it his held as under:-
"The transposition of a defendant as plaintiff is permitted to be made only in two eventualities. First, when where a suit is withdrawn by the plaintiff and secondly, when the plaintiff has abandoned the suit. In doing that also, the Court has to examine whether the applicant has a substantial question to be decided as against other defendants or not."
10. Learned counsel for the respondents placed much reliance upon a Full Bench decision of the Supreme Court 2004 AIR SCW 2089 [Kiran Tandon v. Allahabad Development Authority and another] wherein Their Lordships were pleased to hold as follows:
"4. ... ... ... It is well settled that the Court has power under Sub-rule (2) Order 1, Rule 10, CPC to transfer a defendant to the category of plaintiffs and where the plaintiff agrees, such transposition should be readily made. This power could not be exercised by the High Court in the appeal, if necessary, suo motu to do complete justice between the parties. The principle was laid by the Privy Council in Bhupendra Narayan Sinha v. Rajeshwar Prasad, AIR 1931 PC 162 and has been consistently followed by all the Courts. ... ...
... ..."
11. The Karnataka High Curt has also followed the above said Supreme Court decision in AIR 2005 KARNATAKA 84 [Irapawwa alias Irawwa and others v. Channabasawwa and others] and permitted transposition in given circumstances by observing as follows:
"12. It is well established that the Court has power under Order 1, Rule 10(2) of the C.P.C., to transpose a defendant to the category of plaintiffs. The Court can by sou motu or on the application of any of the defendants may transpose a defendant as plaintiff. Transposition can be made to do complete justice between the parties and with a view to avoid multiplicity of proceedings. I am of the view that for a complete and effectual adjudication upon the question involved in the suit and to avoid multiplicity of proceedings, the trial court has allowed the applications transposing 7th defendant as co-plaintiff. The trial Court was also right in allowing the application for amendment of the plaint."
12. Following the ratio laid down by the Supreme Court, it is held that the defendants 5 to 7 have necessarily to be transposed as plaintiffs in addition to the plaintiff, since their presence in the suit as plaintiffs would be for effective and complete adjudication of the settlement of all the questions involved in the suit. At the risk of repetition, it is also stated that they do not have any conflicting interest, the nature and character of the suit would not undergo any metamorphic change, and the defendants would not suffer any prejudice by transposition.
13. As far as the objection of the petitioner as to the quoting of provision of law is concerned, even though the petition has been filed by the plaintiff under Order 1 Rule 10 of C.P.C., there is no harm in considering the same as one under Order 23 Rule 1 (A) of C.P.C.
14. In view of the above said observations, this Court does not find any infirmity either factual or legal in the order challenged before this Court, which deserves to be confirmed and accordingly it is confirmed. The Revision Petition is devoid of merits, which suffers dismissal.
15. In fine, Civil Revision Petition is dismissed. No costs. Connected M.P. is closed.
ggs To The XII Assistant Judge, City Civil Court, Chennai 104