C. Dhandayuthan vs M. Natarajan and others

Swamikkannu, J,

The second plaintiff in O.S. 239 of 1981 on the file of the learned District Munsif, Palani, is the petitioner herein. I.A. 10. 4 of 1983 in O.S. 239

of 1981 was filed under O. 23, R. 1-A and S. 151 of the C.P.C., by the second plaintiff for transposing him as a defendant in the suit. O. 23, R.

1-A, C.P.C., which was inserted by the Amending Act 104 of 1976 reads as follows:-

Where a suit is withdrawn or abandoned by a plaintiff under R. 1, and a defendant applies to be transposed as a plaintiff under R. 10 of O. 1, the

court shall, in considering such application, have due regard to the question whether the application has a substantial question to be decided as

against any of the other defendants.

A careful reading of the above provision shows that it is only the defendant who can transpose himself as plaintiff. But in the instant case, the

revision petitioner prays for his transposition as defendant in the suit. In the affidavit filed in support of I.A. 1054 of 1983 the second defendant has

stated that O.S. 239 of 1981 had been filed originally by him and the first plaintiff, against the first defendant who is a tenant under them, for

recovery of possession of the property and arrears of rent. He has further stated that the first plaintiff is colluding with the first defendant and is not

co-operating with him to conduct the case and hence it is unsafe for him to prosecute the suit along with the first plaintiff. Hence he has come

forward with this I.A. 1054 of 1983 to transpose himself as a defendant in the suit. But we have already seen that under the provisions of Order

23 rule 1-A this petition cannot be entertained because it is only the defendant who can seek transposition as plaintiff and the plaintiff cannot seek

transposition as defendant. Therefore, it is clear that under the provisions of Order 23, rule 1-A, the case of the revision petitioner cannot be

upheld.

O. 23, R. 1-A of the C.P.C., now specifically provides that if a defendant applies to be transposed to the category of the plaintiff, the

consideration whether the applicant has a substantial question to be decided against the other defendants, should be weighed in deciding the

application for abandonment of suit or withdrawal under O.23, R. 1-A of the C.P.C. Thus the above provision does not enable the revision

petitioner to transpose himself as a defendant. It is also relevant to note that the first defendant has pointed out that he has not abandoned any suit

and he is prepared to conduct the suit. Under the circumstances, the court below is correct in holding that the plaintiff cannot seek the relief of

transposing himself as a defendant in suit and that the provision under O.23, R. 1-A, C.P.C., is not applicable to the present case. In other words,

the lower Court had rightly held that I.A. No. 1054 of 1983, is not maintainable. There is no infirmity in the order under revision. The revision

petition is dismissed under the circumstances without costs.