Subey Singh vs Ishwar Singh alias Sappatar Singh and Others

Ram Chand Gupta, J.—Requests for placing on record Annexures P1 to P6. The same are taken on record subject to all just exceptions. Both the applications stand disposed of accordingly.

The present revision petition has been filed under Article 227 of the Constitution of India for setting aside order dated 9.2.2011, Annexure P6, passed by learned trial Court vide which application filed by Petitioner-Defendant No. 4 under Order XXIII Rule 1A read with Order I Rule X of the CPC (hereinafter to be referred as ''the Code'') has been dismissed.

I have heard learned Counsel for the Petitioner-Defendant No. 4 and have gone through the whole record carefully including the impugned order passed by learned trial Court.

Facts relevant for the decision of present revision petition are that parties are closely related. Suit has been filed by Respondent No. 1-Ishwar Singh alias Sappatar Singh against his daughter, i.e., Respondent No. 2-Smt. Raj Bala, her husband, i.e., Respondent No. 3-Shri Bhagirath Singh, and her daughter, Respondent No. 4-Smt. Neeru by impleading present Petitioner and Respondent No. 5-Defendant No. 5-Man Singh, as proforma Respondents being his brothers. Relief is sought for declaration that Respondent No. 1- Plaintiff and Defendants No. 4 and 5 are joint owners of the agricultural land, duly described in the heading of the plaint, with a consequential relief of permanent injunction restraining Defendants No. 1 to 3 from alienating the land in dispute, in any manner, and further restraining them from interfering in his possession and possession of Defendants No. 4 and 5.

Suit was contested by Respondents No. 2 to 4-Defendants No. 1 to 3. Suit was not contested by present Petitioner-Defendant No. 4 and Respondent No. 5-Defendant No. 5. Rather they filed written statement admitting the claim of Respondent No. 1-Plaintiff. Plea taken by contesting Respondents-Defendants is that Respondent No. 2-Defendant No. 1-was adopted by her uncle Gian Singh and his wife Smt. Champa Devi with the consent of her father Ishwar Singh, i.e., Respondent No. 1-Plaintiff, and after death of her uncle, mutation of his estate was sanctioned in her favour being his adopted daughter. Issues were framed. Evidence of Plaintiff was closed. Evidence of Respondents-Defendants was also closed and the case was fixed for rebuttal and arguments and after availing several opportunities for rebuttal evidence, an application was moved by Respondent-Plaintiff for framing additional issue and for considering his request after framing the same. Additional issue was framed and thereafter, Respondent-Plaintiff appeared as his own witness and filed affidavit of his examination-in-chief. He was also cross-examined on behalf of the contesting Defendants No. 1 to 3, when the present application was filed by Petitioner-Defendant No. 4 under Order XXIII Rule 1 of the Code requesting that he be allowed to be transposed as Plaintiff on the ground that in the cross-examination, Plaintiff has not denied the execution of Will by Smt. Champa Devi in favour of contesting Defendant No. 3. Another application was also filed by him for permission to cross-examine the Plaintiff by him. However, both the applications were dismissed by learned trial Court vide impugned order.

It has been contended by learned Counsel for the Petitioner-Defendant No. 4 that in view of admission of Plaintiff in the cross-examination that if Champa Devi executed a Will in favour of Neeru, Defendant No. 3, the same may be treated as correct, he be allowed to be transposed as Plaintiff in this case.

It is pertinent to reproduce Order XXIII Rule 1A of the Code, which reads as under:

1-A. When transposition of Defendants as Plaintiffs 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 I, 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.

A careful perusal of aforementioned provision shows that where a suit is withdrawn or abandoned by Plaintiff under Rule 1 Order XXIII of the Code, Defendant applies to be transposed as Plaintiff under Order I Rule 10, the Court should consider the same having regard to the question whether applicant has a substantial question to be decided as against any of the other Defendants and hence, in the present case, learned trial Court has rightly come to the conclusion that suit has not been withdrawn by Plaintiff. Plaintiff has also not abandoned any claim in the suit. Hence, merely on the ground of giving an answer in the cross-examination to a question put on behalf of Defendants No. 1 to 3, it cannot be said that Plaintiff has withdrawn the suit against the contesting Defendants. Learned trial Court has given sufficient reasons for not accepting the application of Petitioner-Defendant No. 4 for transposing him as a Plaintiff. Rather learned trial Court has observed that application has been filed in collusion with Plaintiff, just to delay the matter, which is pending since the year 2004.

In view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned trial Court in passing the impugned order or that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court.

Moreover, law has been well settled by Hon''ble Apex Court in Surya Dev Rai v. Ram Chander Rai and Ors. 2004 (1) RCR 147 that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction by this Court. This Court can interfere only when the error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and a grave injustice or gross failure of justice has occasioned thereby.

There is no merit in the present revision petition. The same is hereby dismissed.