BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 24.07.2024
Delivered on : 21.08.2024
CORAM:
THE HONOURABLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
CRP(MD)No.884 of 2022 and
CMP(MD)No.3521 of 2022
1.Nalini Sekaran
2.A.Thilagarajan
P.T.N.Kesavan (Died)
P.T.N.Sivanandham (Died)
3.P.T.N.Amaran
4.P.T.N.Pandi
5.P.T.N.Jothi Ramalingam
6.P.T.No.Devarajan
7.Majestic Chemicals Ltd.,
Tirumangalam,
Represented through the Proprietors,
Namely 1 to 8 Defendants
8.Manimegalai
9.A.Nagalakshmi
10.Pabirekha
11.Amirtharajan
12.Sasikala
13.K.Vigneshwaran
14.Kumareswaran
…Petitioners/Respondents 2 to 17/Defendants 1 to 9 & 11 to 17 vs.
1.Ilangovan … First Respondent/Petitioner/10th Defendant
2.Annal Packiyam … Second Respondent/First Respondent/Plaintiff
PRAYER : Petition filed under Article 227 of the Constitution of India, to call for the records and set aside the fair and executable order dated 23.12.2021 passed in the application in I.A.No.4 of 2021 in O.S.No.518 of 2011 on the file of the Additional District Munsif Court, Tirumangalam.
For Petitioners : Mr.J.Barathan
For Respondents : Mr.N.Mohideen Basha for R1
No Appearance for R2
ORDER
This Civil Revision Petition is directed against the fair and decretal Order of the learned Additional District Munsif, Thirumangalam dated 23.12.2021 in I.A.No.4 of 2021 in O.S. No.518 of 2011. By the said Order, the learned District
Munsif allowed the application filed under Order XXIII Rule 1A read with Section 151 of the Code of Civil Procedure, filed by the first
respondent/petitioner/10th defendant to transpose himself as the second plaintiff.
- The suit was filed by one Annal Packiyam, against 8 defendants in 2011. The case of the plaintiff is that by a series of transactions, the suit properties came to be vested in the plaintiff, she having purchased the same. While so, she was shocked to know that one of the predecessors in title, Neerukathalingam had sold the property in favour of one Panjavarnam Ammal and who had in turn executed documents in favour of the defendants 1, 2 and the father of the defendants 3 to 8. Hence, the suit is for declaration of title of the plaintiff and for consequential permanent injunction restraining the defendants from interfering with the possession of the property.
- The suit is resisted by the defendants by claiming that the said Neerukathalingam had title in respect of the property and denying the fact that he sold the suit property as alleged in the plaint. Since it was pleaded that there was a further sale in favour of one Majestic Chemicals Limited, the said company was imploded as the 9th defendant in the suit.
- Pending the suit, the plaintiff sold the suit property in favour of one Ilangovan by a registered sale deed dated 29.07.2019 and accordingly he was impleaded in the suit as the 10th defendant. The fourth defendant died and his legal heirs were also impleaded as defendants 11 to 17.
- The issues were framed and parties went to trial. After the plaintiff’s side evidence was over and when the defendants were letting in their evidence, at that
stage, the present application was filled by the impleaded purchaser, 10th defendant to transpose himself as the plaintiff. It is his contention that since he had purchased the suit property, he got into the shoes of the plaintiff, as such he has to be transposed as the plaintiff. - The application was resisted by a counter affidavit. The objections are that the plaintiff is very much contesting the suit and has let in evidence and the plaintiff’s side evidence is also over. Now the application is filed only to derail the trial. Secondly, it will lead to a situation where there will be two plaintiffs represented by two different counsel, leading to an anomalous situation.
- The Trial Court found that the plaintiff’s entire interest in the property is sold pendente lite and in case the plaintiff withdraws or abandons the claim, the defendants can continue the suit. The subsequent purchaser has to be given an opportunity to prove his title and possession. Therefore, the 10th defendant can be transposed as the plaintiff. Aggrieved by the same, the present revision is filed.
- Mr.J.Barathan, the learned counsel appearing on behalf of the petitioners/original defendants would contend that the application to transpose can be permitted if only the plaintiff withdraws or abandons the suit. In the absence of the same, when the plaintiff side evidence is over and when the original defendants are now leading evidence, this application ought not to have been entertained. Order XXIII Rule 1-A of CPC categorically imposes the said condition.
- Mr.N.Mohideen Basha, the learned counsel for the 10th defendant would submit that apart from Order XXIII Rule 1-A of CPC, the Court also has power under Order I Rule 10(2) of CPC. When the original plaintiff has no subsisting interest in the suit property, the subsequent purchaser has a right to continue the suit. There is a reasonable apprehension that the original plaintiff may abandon the claim as settled out of court and as such, the application has rightly been allowed by the Trial Court. In support of his submissions, the Judgment of the
Hon’ble Supreme Court of India in Rikhu Dev Chela Bawa Harjug Pass -Vs- Som Dass & others was relied upon. - I have considered the rival submissions made on either side and perused the material records of the case.
- In this case, when the 10th defendant purchased the property from the plaintiff pendente lite, neither the plaintiff nor himself filed application to implead himself as the second plaintiff. He was impleaded as the 10th defendant in the suit. The plaintiff is continuing the suit and has lead evidence. There is also an opportunity for the 10th defendant to lead such evidence to prove his title and possession of the property. While so, whether his claim to transpose himself as the plaintiff is sustainable is the question to be decided.
- The law relating to the transposition of the defendant as plaintiff is no
longer res integra. This Court speaking through Hon’ble Justice V. Ramasubramanian (as His Lordship then was) in R. Dhanasundari vs. A.N.
Umakanth and Ors. held as follows :
“12. In Nagoor Gani alias Rajamani and Ors. v. Gandhi Meenal and Ors. MANU/TN/0260/1988, a learned Judge of this Court considered the scope of Order 23 Rule 1-A C.P.C. and held in paragraph 12 of his judgment as follows:
“This new rule has been enacted in order to enable a defendant, who has identical interest, from being denied his interest if he rested on the success of the plaintiff’s suit and the plaintiff wanted to withdraw the suit. Before a defendant could invoke this provision, it must be shown that the plaintiff is seeking to withdraw or abandon his claim under Rule 1 of Order 23, C.P.C. It is a condition precedent to enable a defendant to get himself transposed. The principle that follows this rule is that there must be identity of interest between the plaintiff and such a defendant who wants to transpose as a plaintiff. It must be a suit where the defendant is entitled to succeed automatically on the success of the plaintiff in the suit. Such a defendant is usually called as a proforma defendant. To put it in other words, both the parties are projecting the same claim against the other defendants, and therefore, the success of one is the success of the other. In such cases, the law comes to the rescue of such a defendant so that the plaintiff, who is having a similar right, cannot defeat the rights of the defendant by colluding with the other contesting defendants.” - In Vasantha Ammal v. V.P. Dhanaraj and Ors. 1990 1 L.W. 209, a Division Bench of this Court considered the discretionary powers of a Court to order transposition. In paragraph 3 of its judgment, the Division Bench held as follows:
“3. On the question of transposition of parties, the powers of Court, are wide enough to confer a discretion on it to transpose the necessary and proper party, if that is required for an effective and a comprehensive adjudication of the controversy in the lis. The use of the discretion will depend upon the facts and circumstances of the case. This discretion is not an unbridled one, but is circumscribed by two broad limitations. One is, where rights valuable have accrued to the other side. The other is, where there is a lack of bona fides on the part of the party seeking transposition, in that he has no plausible case to agitate, having a genuine interest in the lis. In these circumstances, the Court will fetter its hands and will not exercise its discretion. But, the question, as already noted, has to be decided depending on the facts of each case and by bare recapitulation of the principles, the court should not abdicate its discretionary power for ordering transposition, when, in fact, that application needs to be countenanced in the interests of justice and on the facts of the case.”
12.1 Based on the ratio, the Court laid down an illustrative 5-point test for transposition under Order 23 Rule 1A:
“14. From a perusal of the Rule and the ratio laid down in the aforesaid decisions of this Court, the following tests appear to hold the field, in deciding the right of a defendant to transpose himself as a plaintiff:
(a) Whether the defendant who seeks transposition has substantial question to be decided?.
(b) Whether such substantial question has to be decided against any of the other defendants?
(c) Whether the defendant seeking transposition has an identity of interest along with the plaintiff as against other defendants? (d) Whether the success of the plaintiff would result in the automatic success of the defendant who seeks transposition? (e) Whether the withdrawal or abandonment by the plaintiff, of the suit, results in some vested right of the defendant getting defeated?
The above tests are only illustrative and not exhaustive. “
13. The said decision was taken up and the Hon’ble Supreme Court of India in R. Dhanasundari Vs. A.N. Umakanth and Ors. upheld the judgment as well the tests as laid down by this Court. It is essential to extract paragraph 10 the judgement which reads as under :
“10. As per Rule 1-A ibid., in the eventuality of Plaintiff withdrawing the suit or abandoning his claim, a pro forma Defendant, who has a substantial question to be decided against the co-defendant, is entitled to seek his transposition as Plaintiff for determination of such a question against the said co-Defendant in the given suit itself. The very nature of the provisions contained in Rule 1-A ibid. leaves nothing to doubt that the powers of the Court to grant such a prayer for transposition are very wide and could be exercised for effectual and comprehensive adjudication of all the matters in controversy in the suit. The basic requirement for exercise of powers Under Rule 1-A ibid, would be to examine if the Plaintiff is seeking to withdraw or to abandon his claim Under Rule 1 of Order XXIII and the Defendant seeking transposition is having an interest in the subject-matter of the suit and thereby, a substantial question to be adjudicated against the other Defendant. In such a situation, the pro forma Defendant is to be allowed to continue with the same suit as Plaintiff, thereby averting the likelihood of his right being defeated and also obviating the unnecessary multiplicity of proceedings.”
(Emphasis supplied) 14. Thus, it can be seen in this case that the 10th defendant is also a proforma defendant as his case is dependent on the success of the case of the plaintiff and is seeking to establish his title against co-defendants. However, the plaintiff has not abandoned or withdrawn the suit and as such, at this stage, there is no question of transposition of the 10th defendant as plaintiff, especially when the suit is in a part-heard stage. Even as the 10th defendant, he can lead such evidence has wanted to establish his title as well as possession. However, if at any stage, the plaintiff seeks to withdraw or abandon the claim or is not conducting the suit further, then at that stage, it will be open for the Trial Court to transpose the petitioner as the plaintiff. If such a circumstance arises, since the issue has been decided in detail by the Trial Court as well as by this Court, without insisting upon any formal application, only upon the filing of a memo, the 10th defendant shall be transposed as a plaintiff and the suit can be continued. So long such a contingency does not arise, the suit can be continued as such in the present form. - With the above observations, the Civil Revision Petition stands allowed and the order dated 23.12.2021 made in I.A.No.4 of 2021 in O.S.No.518 of 2021 shall stand set aside and the I.A.No. 4 of 2021 shall stand disposed of in terms of the above observations. No costs. Consequently, connected miscellaneous petition
is closed.
21.08.2024
NCC : Yes Index : Yes
sji
To
The Additional District Munsif Court, Tirumangalam.
D.BHARATHA CHAKRAVARTHY ,J.
sji
Pre-Delivery Order Made In
CRP(MD)No.884 of 2022
DATED : 21.08.2024
