Kishori Lal vs Smt. Mahantoo and Others

R.S. Pathak, C.J.—This is a Plaintiffs'' revision petition directed against an Order dated June 2, 1977, made by the learned Senior Subordinate Judge, Solan, refusing to transpose the Petitioners from the array of Plaintiffs to the array of Defendants under Order 1 Rule 10 of the Code of Civil Procedure.

A suit was filed by several Plaintiffs, including the present Petitioner, for a daclaration in respect of property. Reliefs for injunction and possession were also prayed. During the pendency of the suit an application was made by the Petitioners under Order 6 Rule 17 of the Code of Civil Procedure, alleging that the land included in Khasra No. 133/131/87 belonged to them as exclusive owners by virtue of a family partition deed dated December 24, 1933, and that it has been erroneously described in the plaint as belonging jointly to all the Plaintiffs. It was prayed that they may be allowed to amend the plaint so that this particular parcel of land should be shown in their exclusive ownership. The learned Senior Subordinate Judge rejected the application on June 2, 1977, primarily on the ground that the Petitioners, who were Plaintiffs in the suit, could not be allowed to set up a case which was hostile to the case set up by their co-Plaintiffs. Some observations were also made on the applicability of Order 1 Rule 10 of the Code, and it was held that that provision could not be availed of by the Petitioners and that they should file a separate suit against their collaterals for relief in respect of the khasra number. The Petitioners then applied under Order 1 Rule 10 of the Code for being transposed from the array of Plaintiffs to the array of Defendants. The application was rejected by the learned Senior Subordinate Judge on June 2, 1977. The learned Senior Subordinate Judge took the view which he had taken in the Order disposing of the application under Order 6, Rule 17 of the Code, that is to say that Order 1 Rule 10 could not be availed of for transposition of a party from the array of Plaintiffs to the array of Defendants. Indeed, the Order under Order 6 Rule 17 of the Code was made a part of the Order under Order 1 Rule 10. The Petitioners now apply in revision.

It seems clear that the learned Senior Subordinate Judge has erred in taking the view that a party cannot be transposed under Order 1 Rule 10 of the Code from the array of Plaintiffs to the array of Defendants. In Padma Lochan Pal v. Kali Kamal Pal and Ors. a Division Bench of the Calcutta High Court held that a Court could transfer a Plaintiff from the category of Plaintiffs to that of Defendants under Order 1 Rule 10 of the Code. A learned Single Judge of the Rangoon High Court in I.F. Seedat and Ors. v. Mariam Bi Bi and Ors. observed that if some of the Plaintiffs were not prepared to adopt a common case with the other Plaintiffs, the only proper course open was to apply to strike them out as Plaintiffs and to add them as Defendants. Such a course would conduce to a complete adjudication of all the questions involved and would avoid multiplicity of proceedings. The Judicial Committee of the Privy Council recommended the adoption of such a course in Commissioner for Local Government Lands and Settlement v. Abdulhusein Kaderbhai, where it declared that prima facie the Defendants should be added as co-Defendants if it was found necessary to obtain a complete adjudication between the parties.

It is urged on behalf of the Respondents that the very nature of the case would be altered if the transposition sought was permitted, and reference has been made to Kalyan Singh v. Kagdi Ram and Ors. In that case, I took the view that where a Defendant had been sued in a specific capacity if his transposition to the array of Plaintiffs would result in his being deprived of that capacity and the entire nature of the suit was thereby altered, the transposition could not be permitted. In this case, however, although the Plaintiffs joined with the other Plaintiffs originally in taking the case that the land in khasra number 133/131/87 was jointly enjoyed by all the Plaintiffs, subsequently they found that in being party to that pleading they had committed an error because, according to them, the land belonged exclusively to them. There is no Question of any change in the capacity in which the Petitioners were originally parties to the suit and in which they now desired to be transposed as Defendants.

In the application under Order 1 Rule 10 of the Code, the Petitioners have pointed out that in view of the case that the land in Khasra number 133/131/87 belongs to them exclusively, there is a difference between them and the other Plaintiffs and therefore they should be transposed from the array of Plaintiffs to the array of Defendants. In my opinion, they cannot continue as Plaintiffs and, for the reason already mentioned earlier that multiplicity of proceedings should be avoided, I see good reason for permitting the transposition.

It is urged by learned Counsel for the Respondents that this Court should not in the exercise of its discretion u/s 115 of the Code interfere with the Order of the learned Senior Subordinate Judge refusing transposition. Reference has been made to Razia Begum v. Sahebzadi Anwar Begum and Ors. and State of Himachal Pradesh v. Sohan Singh and Ors. The question before me is one of jurisdiction. The learned, Senior Subordinate Judge has taken the view that he had no jurisdiction to transpose the Petitioners because such an Order did not fall within Order 1, Rule 10. That view has been found to be erroneous. The error of jurisdiction committed by the learned Senior Subordinate Judge can be, and should be, corrected u/s 115 of the Code.

Accordingly, the revision petition is allowed, the Order dated June 2, 1977, made by the learned Senior Subordinate Judge, Solan, rejecting the application under Order 1, Rule 10 of the CPC is set aside and the relief claimed in that application is granted. The plaint will be amended in Order to give effect to the transposition of the Petitioners from the array of Plaintiffs to the array of Defendants in the suit. The Petitioners, as newly added Defendants, will be entitled to file a written statement.

In the circumstances, there is no Order as to costs.