Heard Sri Siddharth Varma, learned counsel for the petitioners and Sri Amit Kumar Raj, learned counsel for the respondents.
This writ petition has been filed by the petitioners-defendants challenging the order of the first appellate court dated 09.12.2011 passed in Civil Appeal No.23 of 2009, whereby, the application of the respondent No.3-defendant for transposition as appellant in the appeal filed by the sons of Ram Nagina, i.e. respondents No.1 & 2 herein has been allowed. The facts of the case in brief are as under:
One Sukhdev Rai executed a gift deed dated 20.02.1958 in favour of Ram Nagina, Ram Niwas and Bhagwanti. Bhagwanti was the wife of Ram Niwas and daughter of Sukhdev Rai. Ram Niwas and Ram Nagina were brothers. It is asserted by the respondent No.3 that the aforesaid gift deed was executed in view of the fact that Sukhdev Rai wanted his son-in-law to reside with him as gharjamai, which was not possible, therefore, in the alternative, an offer was made that Sri Ram Nagina, the brother of Ram Niwas would look after the properties of Sukhdev Rai and accordingly, the gift deed in question was executed and the marriage of Ram Niwas was solemnized with the daughter of Sukhdev Rai, i.e. Bhagwanti. Subsequently, the petitioners herein allege that on 19.11.1979, Sukhdev Rai executed a sale deed in respect of the same property, which was gifted to Ram Nagina and Ram Niwas in the year 1958, in their favour. As son as Ram Nagina and Ram Niwas came to know about it, the suit was instituted for cancellation of the said Will, which was registered as Suit No.85 of 1984, Ram Nagina Rai Vs. Smt. Dhaneshara Kunwar and others. Dhaneshara Kunwar daughter of Sukhdev Rai and the petitioners herein were made as defendants. Ram Niwas Rai was also made as a defendant allegedly for the reason that being employed in Rajsthan, it was not possible for him to file and pursue the case as plaintiff. In the suit proceedings, Ram Niwas was examined as plaintiff-witness-1. Ultimately, the suit was dismissed on 24.12.2008.
As the plaintiff Ram Nagina Rai had died, his legal heirs, i.e. respondents No.1 & 2 herein filed an appeal against the aforesaid judgment, which was registered as Civil Appeal No.23 of 2009. It is alleged by the respondent No.3 herein that the sons of Ram Nagina, who were the appellants in the appeal in question became disinterested and were not pursuing the appeal and it was he, who was doing pairvi of the appeal. In these circumstances, he filed an application on 03.11.2010 before the first appellate court under Order 1 Rule 10 read with Section 151, C.P.C. for his transposition as appellant therein. The respondent No.3 herein was already a respondent in the said appeal as he was a defendant in the suit also. Objections were filed to the said application by the petitioners herein. The objections were to the effect that no valid reason has been disclosed in the application for transposition. The suit had been filed only by Sri Ram Nagina and his legal heirs were on record as appellants. The applicant seeking transposition did not prefer any appeal against the judgment dated 24.12.2008 by which the suit was dismissed hence having forgone the right of appeal, now he cannot get himself transposed as appellant by a circuitous route. Such transposition could not be justified. The application for transposition was barred as the appeal having been filed, limitation for filing the appeal is only one month, whereas, the application for transposition had been filed on 03.11.2010 much after filing of the Civil Appeal No.23 of 2009 and much after expiry of the period of the limitation for challenging the judgment dated 24.12.2008. The applicant seeking transposition had an opportunity to get himself transposed during the pendency of the suit, but, he did not avail the said opportunity. The applicants are suitably placed to do the pairvi of the appeal and the said pairvi can be done even by way of power of attorney and that irreparable loss would be caused to the other respondents.
In spite of objections, the first appellate court allowed the transposition application, inter alia, on the ground that Ram Niwas Rai, defendant No.2 in the suit and respondent No.2 in the appeal had deposed before the trial court as P.W.-1. No relief was sought by the plaintiff against Ram Niwas Rai, therefore, his position was the same as that of the plaintiff. The question of limitation was not involved in the matter of transposition. The same was permissible where it was necessary for proper adjudication of the case. No prejudice or loss would be caused to the respondents No.4 to 7 by such transposition, as, even otherwise, the interest of the applicant is the same as that of the appellant.
For the reasons as aforesaid, the appellate court allowed the application vide his order dated 09.12.2011.
Being aggrieved, this writ petition has been filed by the petitioners, who are respondents in the appeal No interim order was passed by this court but the appeal is still pending.
The contention of Sri Siddharth Varma, learned counsel for the petitioners is that the respondent No.3 not having filed any appeal against the judgment dated 24.12.2008, he waived his right to do so and could not be permitted to transpose him as appellant in the appeal filed by the plaintiff. In this regard, he placed reliance upon the decision of the Supreme Court reported in A.P. SRTC and others Vs. S. Jayaram 2004 (13) SCC 792. He further submitted that such transposition was barred by Order 1 Rule 10(5), C.P.C. being beyond the period of limitation prescribed for a suit as also for an appeal. In this regard, he placed reliance upon the decisions reported in Arjan Singh and others Vs. Kartar Singh and others, AIR 1975 P&H 184, Manphool and others Vs. Surja Ram and others, AIR 1978 P&H 216 and Baldev Raj Gupta Vs. Jaswant Singh and others, AIR 1978 J&K 81. The appellate court was powerless to overcome the obstacle of Order 1 Rule 10(5), C.P.C. It did not have any inherent power to transpose. Order XLI Rule 4, C.P.C. would not apply as the losing party, i.e. the respondent No.3 herein, had absolutely waived his right to file an appeal and also in view of the bar of Order 1 Rule 10(5), C.P.C., which was applicable at the appellate stage also in view of the provisions of Sections 107 and 141, C.P.C.
Sri Amit Kumar Rai, learned counsel for the respondent No.3, on the other hand, submitted that bar of limitation does not arise in the matter of transposition, if there was sufficient justification for allowing the transposition application. The defendant-respondent No.3 herein had been examined as P.W.-1 in the suit and his position was the same as that of plaintiff therein. The only reason for which he was arrayed as defendant was that he could not file nor pursue the suit as plaintiff as he was employed in the State of Rajsthan. Subsequently, at the appellate stage as sons of Ram Nagina were not pursuing the appeal and it was the respondent No.3 herein, who was pursuing the same, therefore, it was appropriate for him to get himself transposed as appellant. Such transposition is permissible at the appellate stage also. No prejudice has been caused to either of the parties. He placed reliance upon a judgment of the Supreme Court reported in Kiran Tandon Vs. Allahabad Development Authority, 2004 (10) SCC 745, and a judgment dated 28.01.2014 rendered in the case of LRs of Sri Narendrasingh Bhati Vs. LRs of Fatehsingh and others in support of his contentions.
Order XXIII Rule 1-A, C.P.C. contains a provision for transposition of defendant as plaintiff, where a suit is withdrawn or abandoned by a plaintiff and a defendant applies to be transposed as a plaintiff under Order 10 Rule 1, and in considering the such application, the court is required to have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants.
Order I Rule 10, C.P.C. deals with impleadment of parties and confers power on the court to strike out or add parties at any stage of the proceedings either suo motu or on an application of either of the party on such terms as may appear to the court to be just.
Order I Rule 10(5) states that subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877), Section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons. The Act of 1877 no longer being in force and as the existing Section 21 of the Limitation Act, 1963 corresponds to Section 22 of the Indian Limitation Act, 1877, therefore, it is the former, which applies in the context of the aforesaid provision contained in Order 1 Rule 10(5).
Section 21 of the Limitation Act, 1963 reads as under:
"21. Effect of substituting or adding new plaintiff or defendant.--
(1) Where after the institution of a suit, a new plaintiff or, defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party:
Provided that where the court is satisfied that the omission to include a new plaintiff or defendant was due to a mistake made in good faith it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date.
(2) Nothing in sub-section (1) shall apply to a case where a party is added or substituted owing to assignment or devolution of any interest during the pendency of a suit or where a plaintiff is made a defendant or a defendant is made a plaintiff."
A bare perusal of sub-Section-2 of Section 21 makes it amply clear that sub-section-1 of Section 21 does not apply, where a plaintiff is made a defendant or a defendant is made a plaintiff. Thus, the limitation under Section 21 subsection-2 does not apply in the case of transposition. The legal position in this regard is very well settled by a catena of decisions.
A reference may be made in this regard to the pronouncement of the Supreme Court reported in 1999 (9) SCC 380, Mukesh Kumar and others Vs. Col. Harbans Waraich and others, paragraph-9 of which reads as under:
"9.Section 21 of the Limitation Act provides that wherever on institution of a suit a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he is so made a party. However, if court is satisfied that omission to include a new plaintiff or defendant was due to a mistake made in good faith it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date. Sub-section (2) thereof makes it very clear that these provisions would not apply to a case where a party is added or substituted owing to assignment or devoluation of any interest during the pendency of the suit or where plaintiff is made a defendant or a defendant is made a plaintiff. Section 21 has no application to cases of transposition of parties. Since transposition also involves addition of a plaintiff or a defendant, as the case may be into the suit as originally filed, sub-section (2) of Section 21 of the Limitation Act applies only to those cases where the claim of the person transposed as plaintiff can be sustained on the plaint as originally filled or where a person remaining as a plaintiff after the said transposition can sustain his claim against the transposed defendant on the basis of the plaint as originally filed. For sub-section (2) to apply all that is necessary is that suit as filed originally should remain the same after the transposition of the plaintiff and there should be no addition to its subject matter. Where a suit as originally filed is properly framed with the proper parties on record the mere change of a party from array of defendants to that of plaintiffs under Order 1 Rule 10 of the Civil Procedure Code will not make him a new plaintiff and will not bring the case within this Section and in such a case sub-section (2) will not apply. For instance, where one of the plaintiffs refusing to join as plaintiff was first made a defendant and thereafter transposed as a plaintiff, he is not a new plaintiff. Therefore, the argument advanced on behalf of the appellants that the suit is barred by limitation in so far as Ashwani Kumar is concerned inasmuch as he is transposed as a plaintiff after the period of limitation does not stand to reason."
Such transposition is permissible even at the appellate stage. As per Section 107, C.P.C., the appellate court has the same powers as the court of original jurisdiction i.e. the trial court, therefore, Order 1 Rule 10, C.P.C. is applicable at the appellate stage also. The legal position in this regard is also very well settled and reference may be made to the decision of the Supreme Court reported in , Kiran Tandon Vs. Allahabad Development Authority , 2004 (10) SCC 745, paragraph-4 of which is being quoted hereinbelow:
"4. Shri Sunil Gupta, learned senior counsel for the claimant has at the very outset assailed the order of the High Court whereby the application moved by the State of U.P. for transposing it as appellant in the appeals preferred by ADA was allowed. In the appeals preferred by the ADA against the judgment and award of the Addl. District Judge Smt. Kiran Tandon (widow of the original claimant Ravindra Kumar Tandon) was arrayed as respondent no.1 and State of U.P. was arrayed as proforma respondent no.2. The applications for transposition were supported by the affidavit of Tehsildar Sadar, Allahabad wherein it was averred that an objection had been raised on behalf of State of U.P. before the Addl. District Judge that the acquired land was State land and therefore the entire compensation amount should be awarded to State of U.P. The land had been acquired for construction of residential flats by ADA which is a State within the meaning of Article 12 of the Constitution and is therefore competent to raise any or all of the objection on behalf of the State Government. Therefore, in order to avoid any technical objection and in the interest of justice it was expedient that the State of U.P. may be transposed as appellant no. 2 in the appeal. The High Court held that as the ADA and State of U.P. were disputing the title of the claimant to receive the entire amount of compensation and State of U.P. having already been impleaded as proforma respondent in the appeal, the interest of justice required that it should be transposed as appellant in the appeal. Sub-rule 2 of Order I Rule 10 lays down that the Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant or whose presence before the court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. It is well settled that the Court has power under Sub-rule (2) order I 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 be exercised by the High Court in appeal, if necessary, suo motu to do complete justice between the parties. This principle was laid by the Privy Council in Bhupendra Narayan Sinha v. Rajeshwar Prosad AIR 1931 PC 162 and has been consistently followed by all the Courts. In fact the pleas raised by the ADA and State of U.P. were identical and in order to affectuate complete adjudication of the question involved in the appeal it was in the interest of justice to transpose State of U.P. as appellant no.2 in the appeal. We are, therefore, of the opinion that no exception can be taken to the course adopted by the High Court in transposing the State of U.P. as appellant in both the appeals."
In the instant case, the respondent No.3, Ram Niwas was already arrayed as defendant in the suit and also as a respondent in the appeal filed by the legal heirs of the plaintiff Ram Nagina. He was also examined in the proceedings as plaintiff witness, thus, clearly his position was the same as that of the appellant. The transposition does not bring about any change in the cause of action. There was sufficient justification for him not to file the suit as a plaintiff. There is also sufficient justification for his transposition at the appellate stage as the appellants have become disinterested and it is he, who is doing pairvi of the case. No prejudice is caused to the other parties as there is no addition to the subject matter of the suit nor the cause of action changes. The transposition in question can be sustained on the basis of the plaint as originally filed. The legal position is very well settled that transposition can be ordered either on an application of a party or even suo motu by the court itself. In the facts and circumstances of the case, the transposition is necessary to enable the court to effectually and completely adjudicate upon and settle all the questions involved in the suit/ appeal and it is necessary for the determination of the real matter in dispute. The fact that the respondent No.3 herein did not file any appeal against the judgment of the trial court dated 24.12.2008 does not create any impediment as the plaintiff had filed an appeal and he was arrayed therein as a respondent. His transposition as an appellant at the appellate stage was clearly permissible in view of the judicial pronouncements referred to hereinabove.
In view of the above discussion, none of the contentions raised by Sri Varma, learned counsel for the petitioner are acceptable and in view of judicial pronouncements referred hereinabove, the judgments relied upon by the petitioner also do not help his cause. The impugned order is a well reasoned order, which does not suffer from any error.
The writ petition is misconceived and the same is accordingly dismissed.
Order Date :- 17.10.2014 NLY