Ratanlal vs Mehatarin Bai and Others

Dhirendra Mishra, J.—The above writ petitions are directed against the order dated 9.3.2007 passed by II Civil Judge, Class-II, Raipur in Civil Suit Nos. 81-A/06, 78-A/06, 84-A/06, 85-A/06, 79-A/06 & 80-A/06 whereby the application of the Petitioner, who has been arrayed as Defendant in the above suits, under Order 1 Rule 10 read with Section 151 of the Code of CPC (for brevity ''the Code'') for transposition of his name from the category of Defendant to Plaintiff No. 4, has been rejected. Since the common question of law is involved in all these petitions, they are being disposed of by this common order. (Parties hereinafter shall be referred to as per their description before the Court below).

Briefly stated facts necessary for the purposes of these petitions are that the Plaintiffs filed the above civil suits for possession and damages with the pleading that the Plaintiffs and Defendants 2 to 14 are descendents and legal heirs of deceased Ramdayal. They are joint owners of the suit land bearing Khasra No. 1141/5, area 1.052 hectare situated in Shankar Nagar, Raipur. One Rakesh Pandey claiming himself to be the general power of attorney holder of Defendants No. 2 to 14 and late Sangilal executed a sale deed in favour of Defendant No. 1 of each civil suit. Sangilal, husband of Plaintiff No. 1 and father of Plaintiffs No. 2 & 3, died in the year 1994 and he never executed any power of attorney in favour of anybody including said Rakesh Pandey. Even if any power of attorney has been executed by late Sangilal, after his death the same becomes void and ineffective. The purchasers have obtained possession on the basis of above deeds.

Defendants No. 2 to 14 including Petitioner Ratanlal filed their written W.P. No. 4304 of 2007, Decided on 3.3.2008 statement in the above suits and supported case of the Plaintiffs. The Defendant No. 1 in the written statement pleaded that Defendants No. 2 to 14 and Sangilal were owners of the suit land, they executed a power of attorney in favour of one Rakesh Pandey from whom he purchased the suit land through a registered sale deed in the year 2000 and obtained possession. Name of Defendant No. 1 has also been recorded in the revenue papers and the Plaintiffs have no right in the suit land.

The Petitioner moved an application under Order 1 Rule 10 read with Section 151 of the Code and submitted that there is no conflict of interests between the Plaintiffs and Defendants No. 2 to 14. Since there is no conflict of interest, he cannot set up counterclaim and therefore, his name should be transposed from the category of Defendant to Plaintiff No. 4 so that he could properly prosecute the suit as Plaintiff.

The learned Civil Judge by the impugned order of Annexure P/1 rejected the above prayer of the Petitioner/Defendant.

Shri A.K. Prasad, learned Counsel appearing for the Petitioner contended that it is settled law that the Court has power under Sub-rule (2) Order 1, Rule 10 of the Code to transfer the Defendant to the category of Plaintiffs. This power could be exercised by the High Court in appeal, if necessary, suo motu to do complete justice. It was further argued that the jurisdiction under Article 227 of the Constitution of India is to be invoked only to correct errors of jurisdiction. Where the Court or tribunal fails to render necessary finding to support its order, the same would also be a jurisdictional error liable to be corrected under Article 227 of the Constitution.

On the other hand, Shri B.P. Sharma & Shri K. Sharma, learned Counsel appearing for Respondents No 4 & 5 in W.P. No. 5035/07 contended that the Plaintiffs have pleaded in their plaint that one Rakesh Pandey as power of attorney holder of Defendants No. 2 to 14 and late Sangilal executed a sale deed in favour of contesting Defendant, however, there is no pleading that the Petitioner/Defendant never executed a power of attorney in favour of Rakesh Pandey. Thus, in view of the matter, it cannot be said that there is no conflict of interest between the Plaintiffs and Petitioner Ratanlal. In the instant matter the Plaintiffs did not make any application for transposition, on the contrary, from the pleadings in the plaint it is clear that there is a conflict of interest between the Plaintiffs and Defendants No. 2 to 11. It was further argued that while exercising jurisdiction under Article 227 of the Constitution of India only errors of law patently on record warrant correction. Even the wrong decisions made by the lower Court cannot be interfered with under Article 227 where such decisions have been made within the jurisdiction of the lower Court. The Plaintiff is at liberty to array particular person as Plaintiff or Defendant in his suit and he cannot be compelled to make a particular person to be joined as Plaintiff. The Plaintiff is a dominus litis of his suit.

I have heard learned Counsel for the parties and have gone through the impugned orders and other document annexed with the petitions.

From perusal of the pleadings in the plaint, it is observed that the Plaintiffs have alleged that the suit land was transferred by Rakesh Kumar Pandey on the basis of power of attorney executed by the Petitioner Ratanlal, other Defendants and late Sangilal. There is no pleading that the Defendants No. 2 to 14 did not execute power of attorney in favour of Rakesh Pandey. The Petitioner has filed copy of the plaint and the written statement filed by the contesting Defendant. However, the written statement filed by the Petitioner has not been annexed with these petitions. The Petitioner in paragraph 5.6 of the petitions have pleaded that relationship among the parties is not very cordial, the Plaintiffs are not taking interest in the case and they are not properly prosecuting the case before the trial Court. However, no such ground was taken in his application under Order 1 Rule 10 read with Section 151 of Code before the trial Court.

In the matters of Kiran Tandon Vs. Allahabad Development Authority and Another, the Hon''ble Supreme Court while dealing with powers of the Court under Order 1 Rule 10(2) of the Code, has held that the Court has power to transfer Defendant to the category of Plaintiff and where the Plaintiff agrees, such transposition should be readily made. This power can be exercised by the High Court in appeal, if necessary, suo moto to do complete justice between the parties. The High Court; considering that the plea raised by Allahbad Development Authority and State of U.P. was identical, in order to effectuate complete adjudication of the question involved in the appeal, transposed the State of U.P. as Appellant No. 2 in the appeal. In these circumstances, the Hon''ble Supreme Court dismissed the appeal with an observation that the order passed by the High Court to effectuate complete adjudication of the question involved in appeal, was in the interest of justice and therefore, no interference is called for.

In the matter of Irapawwa alias Irawwa and Ors. v. Channabasawwa and others, AIR 2005 Kar 84 also in a suit challenging sale deed the Defendant prayed for transposition as co-Plaintiff claiming that he is the joint owner of the suit property and the prayer was not objected to by the Plaintiff and in these circumstances, it was held that transposition can be made to do complete justice between the parties and with a view to avoid multiplicity of proceedings. In the other judgments cited by learned Counsel for the Petitioner also the above principle of law has been reiterated.

In the matter of Surya Dev Rai Vs. Ram Chander Rai and Others, it has been held that though the power is akin to that of an ordinary Court of appeal, yet the power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. The power may be exercised in cases occasioning grave injustice or failure of justice such as when (i) the court or tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and (iii) the jurisdiction though available is being exercised in a manner which tantamounts to overstepping the limits of jurisdiction.

In the light of the principles of law laid down in the above judgments, if facts of the present case are scrutinized, it is observed that the case of the contesting Defendant is based on the sale deed executed by power of attorney holder of the Petitioner and other collusive Defendants including late Sangilal. The Plaintiffs have pleaded that late Sangilal never executed any sale deed and since he died in the year 1994, any sale deed executed by his attorney in the year 2000 shall be void ab initio and the same would not confer title on the purchaser. However there is absolutely no pleading that the Defendants No. 2 to 14 also did not execute any power of attorney in favour of Rakesh Pandey. The written statement, if any, filed by the Defendants No. 2 to 14 has not been annexed with these petitions and therefore, it cannot be said that their pleadings are identical with the pleadings of the Plaintiffs. More so, there is nothing on record to establish that the Plaintiffs did not have any objection to transposition of the Petitioner as Plaintiff No. 4.

In the above factual background, this Court is of the considered opinion that there is no jurisdictional error committed by the learned Civil Judge and there is no error in exercise of jurisdiction, which has occasioned failure of justice warranting interference under Article 227 of Constitution of India.

In the result, all the above petitions fail and are hereby dismissed. No order as to costs.