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Dalbir Singh and ors. Vs. Lakhi Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 14 of 1976
Judge
Reported inAIR1979P& H10
ActsCode of Civil Procedure (CPC), 1908 - Order 1, Rule 10 and 10(2)
AppellantDalbir Singh and ors.
RespondentLakhi Ram and ors.
Cases Referred and Modi Spinning and Weaving Mills Co. Ltd. v. Ladha Ram and Co.
Excerpt:
.....patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - --if there was a technical..........petition has been filed by dalbir singh, plaintiff and smt. premwati, brij raj singh and dharampal singh, defendants nos. 23 to 25, respectively, against the order for the subordinate judge 1st class, ballabgarh, dated 29th dec., 1975 vide which the application under o. 1, r. 10, civil p.c., filed by defendants nos. 23 to 25, has been dismissed.2. defendants nos. 23 to 25, namely, smt. premwati, brij raj singh and dharampal singh, filed an application under o. 1, r. 10, civil p.c. for transposing them as co-plaintiffs. a suit for possession is pending between the parties in the trial court on the basis of some earlier decree. it may briefly be stated here that one samran singh, father of defendants nos. 23 and 24 and grandfather of defendant no. 25, the present petitioners, was the owner.....
Judgment:
ORDER

1. This revision petition has been filed by Dalbir Singh, plaintiff and Smt. Premwati, Brij Raj Singh and Dharampal Singh, defendants Nos. 23 to 25, respectively, against the order for the Subordinate Judge 1st Class, Ballabgarh, dated 29th Dec., 1975 vide which the application under O. 1, R. 10, Civil P.C., filed by defendants Nos. 23 to 25, has been dismissed.

2. Defendants Nos. 23 to 25, namely, Smt. Premwati, Brij Raj Singh and Dharampal Singh, filed an application under O. 1, R. 10, Civil P.C. for transposing them as co-plaintiffs. A suit for possession is pending between the parties in the trial Court on the basis of some earlier decree. It may briefly be stated here that one Samran Singh, father of defendants Nos. 23 and 24 and grandfather of defendant No. 25, the present petitioners, was the owner of the agricultural land, which is the subject-matter of the suit. The petitioners are the heirs of said Samran Singh. Said Samran Singh had mortgaged the suit land with Shiv Singh in lieu of Rs. 1,500/- without any legal necessity as per mutation No. 64, dated 28th Sept. 1934. Later on, he sold the suit land to defendants Nos. 1 to 22 or their predecessors-in-interest in lieu of Rupees 2,500/-, as per registered sale deed dated 3rd June, 1937 without any legal necessity. Dalbir Singh, plaintiff-petitioner, had challenged the mortgage and the sale in Civil Suit No. 84 of 1944 entitled 'Dalbir Singh v. Samran Singh' and that suit was decreed in his favour on 12th Feb. 1945. In that suit it was held that the sale shall not take effect after the death of Samran Singh. It was also directed that the plaintiff shall be entitled to the possession of the land in dispute after the death of Samran Singh, on payment of Rupees 2,500/- to defendants Nos. 1 to 22. It was further ordered that the plaintiff shall deposit Rs. 1,500/- for payment to Shiv Singh, mortgagee and then he shall be entitled to possession of the land after the death of Samran Singh on payment of Rs. 4,000/- in all. Samran Singh died on 29th July, 1971 and defendants Nos. 1 to 22 got the suit land redeemed from Shiv Singh vide mutation No. 50. Thus Dalbir Singh, plaintiff-petitioner, brought a suit for the possession of the suit land on payment of Rs. 4,000/- to defendants Nos. 1 to 22, who are respondents in the present petition. Defendants Nos. 23 to 25, the present petitioners, were also made defendants in the present suit and it was mentioned in the plaint that they had partitioned the joint property and the suit property had fallen to the share of Dalbir Singh, plaintiff-petitioner, alone. During the pendency of the suit the present application under O. 1, R. 10, Civil P.C. was made be transposed as co-plaintiffs. The plaintiff Dalbir Singh has not raised any objection to their transposition as co-plaintiffs. It is settled law that where the plaintiff does not oppose the application of any of the defendants for transposition as co-plaintiff, the courts shall allow such applications for transposition. Even otherwise, to avoid multiplicity of the litigation the courts can suo motu allow such transposition. In a case where the defendant can separately file similar suit it is always advisable that the courts may make him as co-plaintiff, even if no application for transposition is filed. The learned Subordinate Judge has dismissed the application of defendants Nos. 23 to 25 on the sole ground that if the application for transposing defendants 23 to 25 as co-plaintiffs is allowed it would bring a clash between the plaintiffs inter se. This could be a ground for rejection of the application if the plaintiff had opposed it. But since the plaintiff has not opposed the transposition of defendants Nos. 23 to 25 as co-plaintiffs, therefore, it can hardly be a ground to reject the application of defendants Nos. 23 to 25. The view I am taking is supported by Bhupendra Narayan Sinha Bahadur v. Rajeswar Prosad Bhakat, AIR 1931 PC 162; Monghi Bai v. Cooverji Umersey, AIR 1939 PC 170 and R. S. Maddanappa v. Chandramma, AIR 1965 SC 1812. In Bhupendra Narayan Sinha Bahadur's case (supra) it was observed by their Lordship of the Privy Council as under:--

'If there was a technical objection to this, the Court clearly had power at any stage of the proceedings to remedy the defect under O. 1, R. 10, C.P.C. by adding the pro forma defendants as co-plaintiffs with the appellant. Such a course should, in their Lordships' opinion always be adopted where it is necessary for a complete adjudication upon the questions involved in the suit and to avoid multiplicity of proceedings.'

In Monghibai's case (supra), their Lordships of the Privy Council observed as under:--

'One or more of several persons jointly interested can bring an action in respect of joint property and if their right to sue is challenged can amend by joining their co-contractors as plaintiffs if they will consent or as co-defendants if they will not. Once all the parties are before the Court the Court can make the appropriate order and should give judgment in favour of all the persons interested whether they be joined as plaintiffs or defendants.

A person executed mortgage in favour of a firm. Subsequently some of the partners retired assigning their interest in favour of the remaining partners by unregistered deed. The remaining partners brought a suit on the mortgage and as an objection was brought to the maintainability of the suit, the plaint was amended bringing on record the retiring partners as defendants.

Held that it would have been more satisfactory that the retiring partners should have been made as co-plaintiffs instead of co-defendants, but even otherwise as whole of the necessary parties were before the Court, appropriate relief could be granted.'

In R. S. Maddanappa's case (AIR 1965 SC 1812) (supra), their Lordships of the Supreme Court observed as under (at p. 1816):--

'Now regarding the second point (i. e. no decree can be passed in favour of a defendant who has not asked for transposition as plaintiff in a suit); this objection is purely technical. The plaintiff sued for partition of the suit properties upon the ground that they were inherited jointly by her and by the first defendant and claimed possession of her share from the other defendants who were wrongfully in possession of the properties. She also alleged that the first defendant did not co-operate in the matter and so she had to institute the suit. The first defendant admitted the plaintiff's title to half share in the properties and claimed a decree also in her own favour to the extent of the remaining half share in the properties. She could also have prayed for her transposition as a co-plaintiff and under O. 1, R. 10(2), C.P.C. the Court could have transposed her as a co-plaintiff. The power under even this provision is exercisable by the Court even suo motu. As pointed our by the Privy Council in Bhupendra v. Rajeswar, 58 Ind App 228: (AIR 1931 PC 162) the power ought to be exercised by a court for doing complete justice between the parties. Here both the plaintiff and the first defendant claim under the same title and though defendants 2 and 8 had urged special defences against the first defendant, they have been fully considered and adjudicated upon by the High Court while allowing her appeal. Since the trial Court upheld the special defences urged by defendants 3 to 8 and negative the claim of the first defendant it may have thought it unnecessary to order her transposition as plaintiff. But the High Court could, while upholding her claim, well have done so. Apparently it either overlooked the technical defect or felt that under O. XLI, R. 38 it had ample power to decree her claim. However that may be, the provisions of S. 99 would be a bar to interface here with the High Court's decree upon a ground such as this.'

A close scrutiny of these authorities shows that the application of the defendants for their transposition as co-plaintiff is allowed especially when the plaintiff does not oppose the said application and their interests are similar. Admittedly, the present petitioners had in their written statement admitted the claim of the plaintiff and there seems to be no clash between their interest and the interest of the plaintiff.

3. Mr. Sarin, learned counsel for the respondents, says that since the present petitioners admitted in their written statement that the plaintiff is the sole owner of the suit property, they may not be allowed to be transposed as co-plaintiffs. He has relied upon Francisco Xavier Antonio Nazore v. Sylvia Angela Alvares, AIR 1971 Goa 35 and Modi Spinning and Weaving Mills Co. Ltd. v. Ladha Ram and Co., AIR 1977 SC 680, but the facts of these authorities are distinguishable. There is no dispute regarding the proposition of law as laid down in these authorities. In Goa case the plaintiff had objected to the transposition of the defendants as co-plaintiffs and, therefore, the application of the defendants was rejected. In the Modi Mills case (supra), it was a case of amendment and not of transposition. Hence these authorities are not applicable to the facts of the present case.

4. No other point is urged.

5. For the reasons recorded above, this petition is allowed, the impugned order is set aside and the application of petitioners Nos. 2 to 4 for their transposition as co-plaintiffs is allowed. The trial Court is directed to proceed with the suit in accordance with law after treating defendants 23 to 25 as co-plaintiffs. The parties are directed to appear before the trial Court on 29th May, 1978. In the circumstances of the case, I make no order as to costs.

6. Petition allowed.


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