Sunday, 7 April 2019

When court should permit transposition of defendants as plaintiffs if plaintiffs are willing to withdraw their suit ?

On the other hand, the law of procedure in relation to withdrawal and
adjustment of suits is contained in Order XXIII of Code of Civil Procedure. As per
Rule 1 thereof, a plaintiff may seek permission for withdrawal of suit or

abandonment of a part of claim. Rule 1-A thereof1 deals with an eventuality
where the plaintiff withdraws his suit or abandons his claim but a pro forma
defendant has a substantial question to be decided against the co-defendant.
This Rule 1-A of Order XXIII CPC reads as under:-
“R.1-A. When transposition of defendants as plaintiff 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be permitted.- Where a suit is withdrawn or abandoned by a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 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.”
9. It remains trite that the object of Rule 10 of Order I CPC is essentially to
bring on record all the persons who are parties to the dispute relating to the
subject matter of the suit so that the dispute may be determined in their presence
and the multiplicity of proceedings could be avoided. This Court explained the
principles, albeit in a different context, in the case of Anil Kumar Singh v.
Shivnath Mishra: (1995) 3 SCC 147 in the following:-
"7. ….. The object of the rule is to bring on record all the
persons who are parties to the dispute relating to the subjectmatter
so that the dispute may be determined in their
presence at the same time without any protraction,
inconvenience and to avoid multiplicity of proceedings."
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
1 Inserted by the Amendment Act No. 104 of 1976

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.

In the given status of parties and the subject matter of the suit, when the
plaintiffs entered into an arrangement with defendant Nos. 1 and 2 and sought
permission to withdraw under Order XXIII Rule 1 CPC, the right of defendant
Nos. 3 to 6 to continue with the litigation on their claim against defendant Nos. 1
and 2 immediately sprang up and they were, obviously, entitled to seek
transposition as plaintiffs under Order XXIII Rule 1-A CPC.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7292 OF 2009

R.DHANASUNDARI @ R. RAJESWARI  VS. A.N. UMAKANTH 

Dinesh Maheshwari, J.
Dated:Dated: 06th March, 2019

This appeal by special leave is directed against the judgment and order
dated 12.10.2006, as passed in C.R.P. (PD) No. 10 of 2006, whereby the High
Court of Judicature at Madras has upheld the order dated 07.07.2005, as passed
in O.S. No. 219 of 2004 by the District Munsif, Chengalpattu allowing the
application filed by defendant Nos. 3 to 6 for transposing them as plaintiffs, after
the existing plaintiffs sought permission to withdraw the suit.
2. The prayer of defendant Nos. 3 to 6 to be transposed as plaintiffs under
Order XXIII Rule 1-A read with Order I Rule 10 of the Code of Civil Procedure,
1
1908 (‘CPC’), came to be made and allowed in somewhat peculiar set of facts
and circumstances, which could be noticed, in brief, as follows:-
(a) The civil suit in question was originally instituted in the Court of the
Principal Subordinate Judge, Chengalpattu by A.C. Nataraja Mudaliar (original
plaintiff) against A.V. Manoharan (defendant No.1 - respondent No. 1 herein) and
R. Dhanasundari @ R. Rajeshwari (defendant No. 2 - appellant herein) for
cancellation of the sale deed dated 23.03.1985, which was executed by
defendant No. 1 in favour of defendant No.2. This suit was initially registered as
O.S. No. 122 of 1989.
(b) The assertions in the plaint had been that the suit schedule property
was purchased in the name of a partnership firm M/s South India Engineering
Works of which, the plaintiff and the defendant No. 1 were the partners; and that
the said firm was dissolved by a deed of dissolution dated 22.05.1971 whereby,
the defendant No. 1 A.V. Manoharan was relieved of the assets and liabilities of
the firm and the suit schedule property vested with the plaintiff A.C. Nataraja
Mudaliar. It was alleged that the defendant No. 1 A.V. Manoharan, despite having
relinquished the rights in the suit property, sold the same to the defendant No. 2
under the impugned sale deed dated 23.03.1985.
(c) During pendency of this suit, the original plaintiff A.C. Nataraja
Mudaliar expired on 19.05.1988 leaving behind 3 sons and 4 daughters as his
legal representatives, who were impleaded as plaintiff Nos. 2 to 8 in the suit. One

of the sons of the original plaintiff namely, A. N. Umakanth (plaintiff No. 5-
respondent No. 1 herein) was extended power of attorney by his siblings.
(d) The suit was decreed ex parte in the year 1995 but later on, the ex
parte decree was set aside and the suit was restored to the original number.
However, in the interregnum, the respondent No. 1 A. N. Umakanth, the power of
attorney holder of all the legal representatives of the original plaintiff, sold the suit
property to three persons, namely Ramasamy, Dhanam Ramasamy and
Venkatasubramanian (respondent Nos. 2 to 4 herein) through a registered sale
deed dated 04.07.1995. In view of this transaction, upon restoration of the suit,
the said purchasers moved an application (IA No. 135 of 2002) for being
impleaded as plaintiffs. This application was allowed on 21.06.2002 and thereby,
the said purchasers were allowed to join the suit as plaintiffs Nos. 9 to 11.
(e) However, the other plaintiffs (Nos. 2 to 4 and 6 to 8) took exception
to the aforesaid transaction of sale by the plaintiff No. 5; they revoked his power
of attorney and moved an application (IA No. 468 of 2003) for transposition of the
plaintiff No. 5 and his purchasers (plaintiff Nos. 9 to 11) as defendants. This
application was allowed on 25.06.2003 and, accordingly, the plaintiff No. 5 and
plaintiff Nos. 9 to 11 were transposed as defendants 3 to 6 in this suit.
(f) Thus, at and until the given juncture, the proceedings and
developments had been that in the civil suit for cancellation of sale deed
executed by the defendant No. 1 in favour of the defendant No. 2, the original
3
sole plaintiff had expired; his legal representatives came on record as plaintiff
Nos. 2 to 8 with plaintiff No. 5 being the power of attorney holder of the other
plaintiffs; the suit was decreed ex parte and the said attorney sold the suit
property to three persons; when the ex parte decree was set aside and the suit
was restored to its number, the said purchasers came on record as plaintiff Nos.
9 to 11; and later on, the said seller and purchasers (plaintiff Nos. 5 and 9 to 11)
were transposed as defendant Nos. 3 to 6. At this juncture and with such change
of complexion, the suit was transferred to the file of District Munsif Court,
Chengalpattu and was renumbered as O.S. No. 219 of 2004.
(g) After having, thus, been transferred and renumbered with addition
and transposition in the array of parties, the suit in question proceeded in trial
but, when the matter reached the stage of cross-examination of the defendants'
witness DW-3, the plaintiffs filed a memo seeking permission to withdraw the suit,
for the matter having been settled with the defendant Nos. 1 and 2. Though the
defendant Nos. 1 and 2 did not oppose the prayer so made by the plaintiffs but
then, the defendants 3 to 6 (who were transposed as defendants from their
earlier position as plaintiffs) filed objections to the memo for withdrawal and also
filed the application (IA No. 153 of 2005) under Order XXIII Rule 1-A read with
Order I Rule 10 CPC with the prayer that they be transposed as plaintiff Nos. 2 to
5 in this suit.

3. The said application for transposition (IA No. 153 of 2005) came to be
allowed by the Trial Court by its impugned order dated 07.07.2005 with the
following observations:-
“Upon perusing the petition, counter it reveals that the original
suit was filed in the year 1989. Originally the petitioner has
filed the above suit as a Power of Attorney agent of plaintiffs.
When the power was in force, the power given to the
petitioner was cancelled. When the power was inforce, the
petitioner sold most of the suit item. The purchasers moved
an application to implead themselves as plaintiffs in the above
suit and the same was allowed. Later the plaintiffs have filed
application to transpose the plaintiffs 5, 9 to 11 as defendants
and the same was allowed. Later the trial commenced and the
plaintiff witness had been examined. On the side of
defendants 3 witnesses were examined. The crossexamination
of 2nd defendant’s husband has been deferred. At
this stage the plaintiff and the 2nd defendant entered into
compromise and filed a memo stating that the suit is not
pressed as settled out of court. The petitioner sold the
property while the power of attorney was in force. Therefore
the petitioner has interest in the out come of the suit. When
the case is at the tail end and the suit is of the year 1989 and
if the suit is allowed to be withdrawn this petitioner has no
remedy and is not in a position to get any remedy in this suit.
More over the petitioners if file fresh suit, the said suit will be
barred by limitation. When all the parties to the suit entered
into compromise, the court will permit the parties to withdraw
the suit. But in this case only the plaintiff and 2nd defendant
alone entered into compromise. The remaining defendants
are not parties to the compromise. Since there is no
compromise with other defendants, this court will not accept
as the matter is fully settled.
For the aforesaid reasons and in the interest of justice and to
settle the matter once for all and determine the rights of the
parties, this petition is allowed.”

4. Aggrieved by the order aforesaid, the defendant No. 2 (appellant herein)
preferred the revision petition that has been considered and dismissed by the
High Court in its impugned order dated 12.10.2006 while observing as under:-
“15…….it is seen in this case that the defendants 3 to 6 who
seek to transpose themselves as plaintiffs, were originally
arrayed as plaintiffs 5 and 9 to 11. On the ground that the 5th
plaintiff (now the 3rd defendant) acted against the interest of
the other plaintiffs (his own brothers and sisters) in selling the
suit property to the defendants 4 to 6, the plaintiffs got them
originally transposed as defendants 3 to 6 in I.A. No. 468 of
2003. In other words, the present defendants 3 to 6 are
subsequent purchasers, pendente lite, they had a substantial
issue to be adjudicated as against the defendants 1 and 2,
when they were plaintiffs 5 and 9 to 11. By virtue of their
transposition as defendants 3 to 6, in the year 2003, they
cannot be said to have lost their rights to have the same
question adjudicated as against the defendants 1 and 2. As a
matter of fact, the 3rd defendant’s right to prosecute the suit as
a plaintiff, flowed out of his status as one of the legal heirs of
the original sale relief prayed for in the suit filed, by his father
did not get annulled by his transposition as the third defendant
in the year 2003.
16. If the plaintiffs contest the suit and succeed, such
success would have automatically enured to the benefit of the
defendants 3 to 6. Therefore, the defendants 3 to 6 can be
said to have an identity of interest with the plaintiffs.
17. Under such circumstances, I am of the view that the Trial
Court was right in ordering the transposition of the defendants
3 to 6 as plaintiffs. Therefore, I find no merits in the Civil
Revision and the Civil Revision Petition is dismissed. No
costs. The connected CMP & VCMP are closed.”
5. Assailing the order aforesaid, learned counsel for the appellant (defendant
No. 2) has strenuously argued that the transaction concerning defendant Nos. 3

to 6 having taken place much after the institution of the suit, these defendants
have no cause of action against defendant Nos. 1 and 2 and hence, they cannot
be transposed as plaintiffs; that the right of the dominus litus plaintiffs to withdraw
the suit under Order XXIII Rule 1 CPC cannot be curtailed, especially when they
do not seek any liberty to file a fresh suit; and that the subsequent purchasers
have no legal right to seek cancellation of the sale deed which was executed in
favour of the appellant way back in the year 1985. These submissions are
supported on behalf of the respondent Nos. 6 & 8 to 11 (the plaintiffs) with the
contentions that the subsequent purchasers have a separate and distinct cause
of action, who ought to institute a separate suit and have no right to be
transposed as plaintiffs in the present suit.
6. Per contra, learned counsel for the respondent No. 1 has duly supported
the order impugned with reference to the subject matter of the suit as also the
developments that have taken place after filing of the suit and with the
submissions that defendant Nos. 3 to 6 have identical interest to seek
cancellation of the sale deed executed by the defendant No. 1 in favour of the
defendant No. 2. Hence, according to the learned counsel, when the existing
plaintiffs seek to withdraw, the defendant Nos. 3 to 6 have a right to be
transposed as plaintiffs so as to seek adjudication of their claim against the
defendant Nos. 1 and 2 in relation to the suit property.
7. Having bestowed anxious consideration to the rival submissions and
having examined the record with reference to the law applicable, we are clearly

of the view that on the facts and in the circumstances of this case, upon the
existing plaintiffs seeking permission to withdraw under Order XXIII Rule 1 CPC,
the defendant Nos. 3 to 6 have rightly been allowed to be transposed as plaintiffs
under Order XXIII Rule 1-A read with Order I Rule 10 CPC and to continue with
the suit, as originally filed against the defendant Nos. 1 and 2.
8. The law of procedure relating to the parties to a civil suit is essentially
contained in Order I of the Code of Civil Procedure, dealing with various aspects
concerning joinder, non-joinder and mis-joinder of parties. Rule 10 of Order I
specifically provides for addition, deletion and substitution of parties; and the
proposition for transposition of a party from one status to another, by its very
nature, inheres in sub-rule (2) of Rule 10 of Order I CPC that reads as under:-
"(2) Court may strike out or add parties. - The Court may at
any stage of the proceedings, either upon or without the
application of either party, and on such terms as may
appeared 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 or 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."
8.1 On the other hand, the law of procedure in relation to withdrawal and
adjustment of suits is contained in Order XXIII of Code of Civil Procedure. As per
Rule 1 thereof, a plaintiff may seek permission for withdrawal of suit or

abandonment of a part of claim. Rule 1-A thereof1 deals with an eventuality
where the plaintiff withdraws his suit or abandons his claim but a pro forma
defendant has a substantial question to be decided against the co-defendant.
This Rule 1-A of Order XXIII CPC reads as under:-
“R.1-A. When transposition of defendants as plaintiff 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 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.”
9. It remains trite that the object of Rule 10 of Order I CPC is essentially to
bring on record all the persons who are parties to the dispute relating to the
subject matter of the suit so that the dispute may be determined in their presence
and the multiplicity of proceedings could be avoided. This Court explained the
principles, albeit in a different context, in the case of Anil Kumar Singh v.
Shivnath Mishra: (1995) 3 SCC 147 in the following:-
"7. ….. The object of the rule is to bring on record all the
persons who are parties to the dispute relating to the subjectmatter
so that the dispute may be determined in their
presence at the same time without any protraction,
inconvenience and to avoid multiplicity of proceedings."
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
1 Inserted by the Amendment Act No. 104 of 1976

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.
11. The present one is clearly a case answering to all the basics for
applicability of Rule 1-A of Order XXIII read with Rule 10 of Order I CPC. As
noticed, the principal cause in the suit is challenge to the sale deed executed by
defendant No. 1 in favour of defendant No. 2, with the original plaintiff asserting
his ownership over the property in question. After the demise of original plaintiff,
his sons and daughters came to be joined as plaintiff Nos. 2 to 8 with plaintiff No.
5 being the power of attorney holder of all the plaintiffs. After the suit was
decreed ex parte, the plaintiff No. 5 transferred the property in question to the

aforesaid three purchasers, who were joined as plaintiff Nos. 9 to 11 when the ex
parte decree was set aside and suit was restored for bi parte hearing. In the
given status of parties, even if the plaintiff Nos. 5 and 9 to 11 were later on
transposed as defendant Nos. 3 to 6, the suit remained essentially against the
defendant Nos. 1 and 2, that is, in challenge to the sale deed dated 23.03.1985,
as executed by the defendant No. 1 in favour of the defendant No. 2. In regard
to this cause, even if plaintiff Nos. 5 and 9 to 11 came to be transposed as
defendant Nos. 3 to 6, their claim against defendant Nos. 1 and 2 did not come to
an end; rather, the interest of the existing plaintiffs as also the defendant Nos. 3
to 6 had been one and the same as against the defendant Nos. 1 and 2.
12. In the given status of parties and the subject matter of the suit, when the
plaintiffs entered into an arrangement with defendant Nos. 1 and 2 and sought
permission to withdraw under Order XXIII Rule 1 CPC, the right of defendant
Nos. 3 to 6 to continue with the litigation on their claim against defendant Nos. 1
and 2 immediately sprang up and they were, obviously, entitled to seek
transposition as plaintiffs under Order XXIII Rule 1-A CPC.
13. It is also noteworthy that even if some question is sought to be raised as
regards the rights of the subsequent purchasers (defendant Nos. 4 to 6), the right
of the defendant No. 3 (earlier the plaintiff No. 5) to prosecute the suit as a
plaintiff remains rather indisputable in view of his status as one of the legal
representatives of the original plaintiff. The right of the said defendant No. 3

(earlier the plaintiff No. 5) to challenge the sale deed between defendant No. 1
and defendant No. 2 did not get annulled only by his earlier transposition as the
defendant; and he cannot be considered bound by the arrangement between the
existing plaintiffs and the defendant Nos. 1 and 2. In the given set of
circumstances, the Trial Court had been justified in allowing the prayer for
transposition and the High Court has rightly declined to interfere.
14. For what has been discussed hereinabove, this appeal fails and is,
therefore, dismissed.
...…….……………………J
(UDAY UMESH LALIT)
….…………………………J
(DINESH MAHESHWARI)
New Delhi,
Dated: 06th March, 2019

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