Whether the defendant can apply for his transposition if the plaintiff is neither withdrawing nor abandoning the suit?

 Having said that, in so far as plea of the legal heirs of Harmeet Singh Vohra for transposition as plaintiffs in the suits is concerned. Order XXIII Rule 1A of the CPC deal with the issue of transposition. The same is reproduced as under:

"1-A. When transposition of defendants as plaintiffs may be permitted. - Where a suit is withdrawn or abandoned by a plaintiff under R.1, and a defendant applies to be transposed as a plaintiff under R.10 of Or. 1, the Court shall, in considering such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."

45. A perusal of Order XXXIII Rule 1-A reveal that an application for transposition can be filed in two contingencies; firstly when the plaintiff withdraws the suit or secondly the plaintiff abandons the suit. In other words, there is no question of transposition in the eventuality, the suit is neither withdrawn nor abandoned.

46. In the case in hand, we are concerned with two suits. A perusal of the application under Order XXIII Rule 3 which I have already reproduced above reveal that the suit being CS (OS) 872/2010 the plaintiff Manjeet Singh Kohli is seeking recording of compromise in terms of the compromise arrived at between him and the defendant Nos. 1 to 8 and 9. To put it differently Manjeet Singh Kohli is neither withdrawing or nor abandoning the suit. So, the application for transposition in CS (OS) 872/2010 is not maintainable.

IN THE HIGH COURT OF DELHI

CS (OS) 872/2010, 

Decided On: 11.06.2020

 Manjeet Singh Kohli   Vs.  Mirajuddin and Ors.

Hon'ble Judges/Coram:

V. Kameswar Rao, J.

Citation: MANU/DE/1234/2020

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Basic principles to be followed by court for transposing defendant as plaintiff

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 Code of Civil Procedure reads as under:

Rule 1-A. When transposition of Defendants as Plaintiff may be permitted.- Where a suit is withdrawn or abandoned by a Plaintiff Under Rule 1, and a Defendant applies to be transposed as a Plaintiff Under Rule 10 of Order 1, the Court, shall, in considering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 Code of Civil Procedure 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: MANU/SC/0652/1995 : (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 subject-matter 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 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 SUPREME COURT OF INDIA

Civil Appeal No. 7292 of 2009

Decided On: 06.03.2019

 R. Dhanasundari  Vs.  A.N. Umakanth and Ors.

Hon'ble Judges/Coram:

U.U. Lalit and Dinesh Maheshwari, JJ.

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