Whether Section 21 of limitation Act is applicable to cases of transposition of parties?

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 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.

 IN THE SUPREME COURT OF INDIA

C.A. No. 4918 of 1989

Decided On: 27.10.1999

Mukesh Kumar and Ors. Vs.  Harbans Waraich and Ors.

Hon'ble Judges/Coram:

S. Rajendra Babu and R.C. Lahoti, JJ.

Author: S. Rajendra Babu, J.

Citation: AIR 2000 SC 172MANU / SC / 0686 / 1999( 1999 ) 9 SCC 380

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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 - Where a suit is withdrawn or abandoned by a plaintiff under R.1, and a defendant applies to be transposed as a plaintiff under R.10 of Or. 1, the Court shall, in considering such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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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

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