Vasantha Ammal vs V.P. Dhanaraj and Others

Nainar Sundaram, J.—The second defendant in O.S. No.294 of 1984 on the file of the Principal Subordinate Judge, Madurai, is the

appellant in this Letters Patent Appeal. The first respondent herein is the first defendant ; the second respondent herein is the plaintiff and

respondents 3 to 5 herein are defendants 3 to 5 in the suit. We propose to refer to the parties as per their nomenclature in the suit. The plaintiff laid

the suit for a declaration of title and for delivery of possession. The case of the plaintiff is that the suit property was the self-acquired property of his

father and after the demise of his father, he and his sisters, defendants 3 to 5 are entitled to the same as his legal heirs ; and the first defendant,

though a natural brother of the plaintiff, was given away in adoption and he his no right over the suit property. The first defendant resisted the suit

contending that the suit property was purchased by his adoptive father in the name of his natural father benami for the adoptive father and the first

defendant and his adoptive father lived in the suit property until the demise of the adoptive father, and thereafter the first defendant continued to live

in the suit property. The second defendant contested the suit saying that she purchased a portion of the suit property from the first defendant and

she is a bona fide purchaser for value without notice of dispute over title and her possession is lawful. The first Court tried the suit and decided the

issues arising therein and as a result of the decision, decreed the suit of the plaintiff. The first defendant, aggrieved over the decision, has preferred

Appeal No. 347 of 1989 to this Court and the said appeal is pending. The first defendant has been permitted to prefer Appeal No.347 of 1989 as

an indigent person. The first defendant also obtained stay and that stay has been confined only to the first defendant. Thereafter, the second

defendant took out C.M.P. No.9490 of 1989 for transposing her as the second appellant in the appeal to prosecute the same along with the first

defendant, who has already preferred the appeal. This petition was considered by the learned single Judge and he dismissed the same. This letters

patent Appeal is directed against the order of the learned single Judge. This Letters Patent Appeal is admitted. In view of the limited scope of the

controversy in the Letters Patent Appeal, we decided to dispose of the same today itself. Mr. K. Vaitheeswaran appears for the plaintiff, who

alone contested the application before the learned single Judge. The first defendant, though represented by counsel, did not put forth any contest

before the learned single Judge. Defendants 3 to 5 did not even care to appear before the learned single Judge. We deem it fit, in the said

circumstances, to dispense with service of notice on defendants 1 and 3 to 5 in this Letters Patent Appeal. We heard full submissions on behalf of

the second defendant and the plaintiff through their respective counsel. Mr. E. Padmanabhan, learned counsel for second defendant/appellant,

would submit that when the facts of the case are taken note of, the grounds which weighed with the learned single Judge for dismissing the Petition

of the second defendant for transposition may not be in order and the facts of the case do warrant a transposition, as asked for by the second

defendant being ordered. As against this, Mr. K. Vaitheeswaran, learned counsel appearing for the plaintiff, would submit that the first defendant

has preferred the appeal as an indigent person and that position cannot be taken advantage of by the second defendant by coming on record as a

co-appellant along with the first defendant; by the second defendant coming on record as a co-appellant along with the first defendant, the second

defendant may take advantage of the stay granted; the second defendant had full knowledge of the preferring of the appeal by the first defendant at

all stages and she remained indolent and she cannot be allowed to have transposition as a co-appellant along with the first defendant in the appeal

already preferred by the latter, especially when her right to prefer an independent appeal stood barred; and the second defendant has got an

independent right to agitate and she cannot annex her agitation along with the agitation of the first defendant, who is the appellant on record.

On the question of transposition of parties, the powers of Court, are wide enough to confer a discretion on it to transpose the necessary and

proper party, if that is required for an effective and a comprehensive adjudication of the controversy in the lis. The use of the discretion will depend

upon the facts and circumstances of the case. This discretion is not an unbridled one, but is circumscribed by two broad limitations. One is, where

rights valuable have accrued to the other side. The other is, where there is a lack of bona fides on the part of the party seeking transposition, in that

he has no plausible case to agitate, having a genuine interest in the lis. In these circumstances, the Court will fetter its hands and will not exercise its

discretion. But, the question, as already noted, has to be decided depending on the facts of each case and by bare recapitulation of the principles,

the Court should not abdicate its discretionary power for ordering transposition, when, in fact, that application needs to be countenanced in the

interests of justice and on the facts of the case.

Four factors were taken note of by the learned single Judge while discountenancing the prayer for transposition put forth by the second

defendant.

(i) The first factor is there was no acceptable explanation whatever on the side of the second defendant for not filing an appeal as against the

judgment and decree of the first Court, which have admittedly gone against her.

(ii) The first defendant has been permitted to prefer the appeal as an indigent person and the second defendant cannot appropriately come on

record in that appeal as a co-appellant.

(iii) The appeal, if preferred by the second defendant, would be hopelessly barred by limitation.

(iv) On merits, the appeal itself may not be fruitfully prosecuted in view of the promulgation of the Benami Transactions (Prohibition) Act 45 of

1983, hereinafter referred to as the Act.

Our assessment of the facts of the case, in the backdrop of the principles governing the question, oblige us to differ from the view of the learned

single Judge.

The second defendant did offer an explanation for not preferring the appeal along with the first-defendants. In paragraph 4 of the affidavit filed in

support of the application, the second defendant would say that she could not join the first defendant at the time of filing of the appeal as she was

away from Madurai Town and the first defendant alone had to rush to this Court as the time to present that appeal was about to expire and during

the relevant time the second defendant was not in station. Of course, this averment has been rebutted in the counter affidavit filed by the plaintiff,

and the plaintiff would say that the second defendant was fully aware of the appeal preferred by the first defendant as an indigent person by taking

out the requisite application therefor. Here, we are more concerned with the explanation for the second defendant not joining as an appellant at the

time the appeal was preferred by the first defendant and not with the knowledge of the second defendant about the appeal having been preferred

by the first defendant with an application to prefer the same as an indigent person. We have not been shown any convincing reason to discredit and

disbelieve the circumstances pleaded by the second defendant for not joining the first defendant in preferring the appeal. After all she has her

interests to be protected, and her title is through the first defendant and her explanation for not joining the first defendant in preferring the appeal,

appears to us to be genuine and deserving acceptance.

With regard to the aspect of limitation, strictly speaking, in a case of transposition of parties, the question of limitation may not arise. Ramesam,

J. in Ponnammal Vs. Pichai Thevan and Others, opined that where a party is transposed, no question of limitation arises. Though the question of

limitation may not strictly arise in the case of transposition of parties, yet that may be a relevant factor in appropriate cases to be taken note of to

find out how far it will cause prejudice to the other side. The second defendant is an alienee of a portion of the suit property from the first

defendant. We are told that the alienation took place on the very date of the filing of the suit. The second defendant has a right and interest co-

existing with those of the first defendant in prosecuting the appeal. It is not as if the plaintiff will have no occasion to fight for a cause in the appeal

already preferred by the first defendant. The plaintiff will have to fight out the case, regarding the dispute over his title. In that fight, the case of

second defendant merges with that of the first defendant. The claim of the second defendant that she is a bona fide purchaser for value without

notice could also go along with the controversy as a whole. The second defendant being a co-appellant along with the first appellant in the appeal,

already preferred by the latter, will pave the way for an effective and a comprehensive adjudication of the controversy in the lis, It is not as if the

second defendant did not contest the suit along with the first defendant. The rights of the second defendant in so far as the portion alienated to her

are co-extensive with those of the first defendant. In this view, the question of limitation should not loom large to speak of a case of prejudice to

the plaintiff, so as to dissuade this Court from exercising its discretion. There is also a possibility of a future technical objection with reference to the

second defendant agitating the matter further in case the appeal should fail before this Court; on the ground that she was not an appellant before

this Court. Her fight merges with the fight of the first defendant, and it is just and appropriate that she is before this Court as an appellant. When we

take note of the above features, we are convinced that merely on the ground that any appeal, if preferred by the second defendant, would be

barred by limitation, this Court should not refuse to exercise the discretion with regard to transposition asked for.

On the question that the first defendant has preferred the appeal as an indigent person and that cannot be taken advantage of by the second

defendant, who, according to the plaintiff, cannot claim to be an indigent person, we appreciate the objection put forth by Mr. K. Vaitheeswaran,

learned counsel for the plaintiff. However Mr. E. Padmanabhan, learned counsel for the second defendant, says that his client is prepared to pay

the requisite Court-fees on the appeal. This answers the grievance of the plaintiff with regard to the propriety of the second defendant getting

herself annexed as a co-appellant in the appeal, preferred by the first defendant as an indigent person without any adjudication over that aspect

with reference to the second defendant.

On the contention that the appeal itself may have to be thrown out in view of the provisions of the Act, we do not think that it should be counted

at this juncture as the sole factor to say that the second defendant has no genuine case to agitate for and lacks bona fides. The reliance placed in

this behalf by Mr. K. Vaitheeswaran, learned counsel for the plaintiff, on O.23. R.1A of the Code of Civil Procedure, hereinafter referred to as the

Code, may not be a proper one; because that provision contemplates the withdrawal or abandonment of a suit by the plaintiff and the defendant

applying to be transferred as a plaintiff, and the Court while considering such application having due regard to the question as to whether the

applicant has a substantial question to be decided as against any of the other defendants. We are not, in the present case, faced with any such

contingency. But, de hors O.23, R.1A of the Code, the party seeking transposition must show that he has a plausible and a genuine case to be

agitated. It is here Mr. E. Padmanabhan, learned counsel for the second defendant, submits that the Act cannot be put against his client to shut out

and put an end to her rights in toto because his client has a defence built on adverse possession also and that has got to be adverted to and

adjudicated upon. This submission is not without substance. In our view, it cannot be straightaway said that the second defendant has no plausible

and genuine case to be agitated. As per our above discussion, we are persuaded to accept the case for transposition, as pleaded by the second

defendant. At the same time, we are inclined and feel justified to impose appropriate conditions and costs. Accordingly, this Letters Patent Appeal

is allowed; the order of the learned single Judge in C.M.P. No. 9490 of 1989 is set aside; and that application is ordered, subject to the following

conditions:

(1) The second defendant will pay the requisite Court-fees payable on the appeal A.S.No. 347 of 1989 within a period of eight week from today;

(2) The second defendant will pay the counsel for the plaintiff appearing before this Court the costs of Rs. 750/- (Rupees seven hundred and fifty)

only within the period mentioned in clause (1) supra:

(3) If the conditions, stated in Cls. (1) and (2) supra, are not complied with, C.M.P.No. 9490 of 1989 will stand dismissed;

(4) If the conditions, stated in Cls.(1) and (2) supra, are complied with, C.M.P.No.9490 of 1989 will stand allowed; and

(5) the transposition, pursuant to allowing C.M.P. 9490 of 1989 will be effective from the date of the preferring of the appeal No.347 of 1989.