V.V. Bedarkar, J.
1. This is a revision petition against the order dated 30-10-1982 pass-ed by the learned 3rd Joint Civil Judge, Junior Division, Mehsana, below application Ex. 210 in Regular Civil Suit No. 202 of 1979, rejecting the prayer of the petitioner to transpose her as a plaintiff, and the plaintiff of that suit who wanted to withdraw the suit should be transposed as defendant No. 2.
2. The case has an interesting history. The petitioner purchased a property bearing Block No. 8/A situated in Alkapuri Housing Society. Mehsana, for an amount of Rs. 25.000 from one Babaldas Laxmandas Patel (present opponent No. 2) by a sale-deed dated 26-4-1977. In the said sale-deed opponent No. 2 had also assured the present petitioner to help and co-operate for a complete transfer of the said property in the name of the petitioner in the records of the Municipality, Government and the Society. It was also the case of opponent No. 2 in the sale-deed that no person other than opponent No. 2 had any right, title or interest in the said property. The case of the petitioner is that thereafter she became the owner and occupant of the said property, and on 30-7-1979 she was in peaceful possession and enjoyment of the said property. She was also recovering the rent from the tenants. As the petitioner is ordinarily resident of Bombay, she used to be at Bombay. Whenever she used to be at Bombay, she used to lock her house. When she had so gone to Bombay after locking her house, opponent No. 2 had taken unauthorised possession of the same by breaking open the lock. Therefore, she received a telegram from her tenant Govindbhai Asharam Bardanwala on 1-9-1979 to that effect. On inquiry the said telegram was found to be true. Therefore, she filed a criminal complaint in the Court of the Judicial Magistrate, First Class, Mehsana. It is also her case that opponent No. 2 had taken unlawful possession of the petitioner's property and allowed unlawfully without jurisdiction opponent No. 1 to enter into the rooms of the suit property under the pretext of alleged Banakhat of sale of the said property said to have been executed by opponent No. 2 on 29-4-1979 in favour of opponent No. 1.
3. It is the contention of the petitioner that with a view to justifying and protecting the said illicit act of opponents Nos. 1 and 2, opponent No. 1 in collusion with opponent No. 2 filed Regular Civil Suit No. 202 of 1979 on 19-9-1979 in the Court of the learned Civil Judge, Junior Division. Mehsana and had obtained an ad interim ex parte injunction forbidding the petitioner from entering in the suit property. Then according to the petitioner, after the affidavit, etc., said ad interim ex parte injunction was vacated. Then on the strength of various grounds mentioned in paragraph 8 of the petition, and documents referred to therein, as contended by the petitioner, the learned trial Judge came to a plenary finding that the suit property belonged to the present petitioner and opponent No. 2 had no right whatsoever to execute any Banakhat in favour of opponent No. 1 in respect of the suit property, and if at all such transaction had taken place between opponents Nos. 1 and 2, it was totally illegal. Thereafter, opponent No. 1 preferred Civil Miscellaneous Appeal No. 45 of 1980 in the Court of the learned Joint District Judge, Mehsana. The said appeal was allowed, and the order dated 11-3-1980 of the learned Civil Judge which was appealed against was set aside on 16-6-1981. and the injunction was restored. Against that order, the present petitioner filed Civil Revision Application No. 2306 of 1981 before this Court, which was heard by N. H. Bhatt. J. who by his order dated 8-3-1981 gave a direction to the trial Court to take UP the matter soon on hand and disposed it of as ex-peditiously as possible, and in no circumstances beyond 15-8-1982. Then some further directions were given.
4. After the matter went back to the trial Court, no substantial progress was made in spite of the directions of this Court. But when the matter was kept for hearing on 19-6-1982, neither opponent No. 1 nor opponent No. 2 was present. Ultimately, after various adiournments on 12-10-1982 a withdrawal pursis was given by present opponent No. 1 (original plaintiff) under Order 23, Rule 1 of the Code of Civil Procedure. 1908 (hereinafter referred to as 'the Code') which was vehemently opposed to by the petitioner by making an endorsement below the said pursis, and also by presenting a detailed separate application on 18-10-1982, with a prayer that the petitioner should be transposed as the Plaintiff vice original plaintiff (present opponent No. 1) and that present opponent No. 1 (original plaintiff) should be transposed vice the present petitioner as original defendant. No. 2. Reasonable cost was also asked for. The grievance of the petitioner is that the learned trial Judge, by his order dated 30-10-1982, granted the withdrawal Purshis of the plaintiff (present opponent No. 1) under Order 23, Rule 1 of the Code, and ordered her to pay the cost of Rs. 500 to the petitioner, and thus disposed of the suit without considering the prayer of the petitioner for transposition of the parties and restoring the possession of the suit property. In fact, annexed with the petition is the copy of application Ex. 210 in Regular Civil Suit No. 202 of 1979, and also the order below that application of the learned trial Judge. The body part of the said order clearly shows that the request of the petitioner for transposing her as the plaintiff was rejected. Though in the final order, ultimately the suit was disposed of as withdrawn with the order of cost of Rs. 500 to defendant No. 2, in the last paragraph before order portion the learned trial Judge has specifically considered the request and rejected it.
5. The grievance of Mr. N. K. Barot, learned Advocate for the petitioner, is that though the trial Court was authorised to permit withdrawal because there was no prayer for permission to file another suit on the same cause of action, the Court should have granted the request of the petitioner to transpose her as a plaintiff. For this, reliance is placed on the amended provision of Order 23, Rule 1-A of the Code, which is as follows:--
'1-A. 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 1, 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.'
6. The main grievance of Mr. Barot is that the learned trial Judge should have permitted transposition because the petitioner has a substantial question to be decided against opponent No. 1, if the petitioner was transposed as the plaintiff. It is the case that though the plaintiff (opponent. No. 1) filed the suit for injunction against the defendants restraining them from disturbing her possession, the points involved in the suit were such as were necessary to consider the dispute between the defendants inter se, and if the plaintiff was permitted to be made defendant. In the suit, then the right of the petitioner could have been adjudicated upon, because the petitioner has a substantial Question to be decided as against both the original Plaintiff and the original defendant.
7. It is the submission of Mr. Barot that if transposition would have been allowed, it would have saved multiplicity of suits. In order to support his contention. Mr. Barot relied on the decision of the Privy Council in Bhupendra Narayan Sinha v. Rajeswar Prasad. . In that decision it has been held by the Privy Council that the course of adding pro forma defendants as co-plaintiffs should always be adopted where it is necessary for a complete adjudication upon the questions involved in the suit and to avoid multiplicity of proceedings. These can be no dispute with this principle, but it refers to pro forma defendants, meaning thereby, the defendants who are brought on record because they are necessary or proper parties without any relief having been sought against them and they are merely pro forma. It should be noted that in that case, suit was filed by the appellant for declaration of his ownership and possession of the sub-soil, and an injunction restraining the respondents from digging and removing the stones, earth and minerals, etc. Therein it was found that all the members of the family were parties to the suit and were at least jointly entitled to the whole, The pro forma defendants asked that a decree should be passed in favour of the appellant. If there was a technical objection to that the Court clearly had power at any stage of the proceedings to remedy the defect under Order 1, Rule 10 of the Code by adding the pro forma defendants as co-plaintiffs with the appellant.
8. Mr. Barot also relied on the decision of the Madhya Pradesh High Court in Sampatbai v. Madhusingh : AIR1960MP84 . Therein it has been held that under Order 1, Rule 10 (2) of the Code the test is not whether the joinder of the person proposed to be added as a defendant would be according to or against the wishes of the plaintiff or whether the joinder would involve an investigation into a question not arising on the cause of action averred by the plaintiff. Though that decision pertained to adding of the defendant. Mr. Barot has relied on it because, according to him, if the question is to be decided by the Court in favour or against a person, he should be a party. No dispute can be raised about that principle. But one thing cannot be ignored that to be transposed as a plaintiff, the defendant who claims to be transposed must have interest identical with the interest of the plaintiff. There are cases where plaintiff filed a suit who has interest in common to the person whom he makes pro forma defendant, in collusion with the contesting defendant, such a plaintiff may sometime decide to withdraw the suit. In order not to defeat the claim of pro forma defendant who has an identical interest with the plaintiff by such a withdrawal, provision of Order 23, Rule 1-A of the Code is made so that pro forma defendant or the defendant can be transposed as a plaintiff and the suit as filed by the plaintiff can be effectively proceeded against the defendant who has remained on the record as defendant. This is what the spirit of Order 23, Rule 1-A of the Code shows, because in such cases, the applicant (defendant applying to be transposed as plaintiff) has a substantial question to be decided as against any of the remaining defendants. Though Courts lean against multiplicity of suits and, therefore, this provision of transposition is made only to avoid another suit. Courts would not permit such transposition just to give a chance to a litigant to avoid filing a suit or permit him to take advantage of the suit filed by his adversary against him claiming a relief against him by becoming a plaintiff and trying to bring out the averments and reliefs which are contrary to those claimed by the original plaintiff. I am observing this specifically because the original plaintiff filed a suit for injunction against the present petitioner and original defendant No. 2 from interfering with her possession of the suit property. It is true that if the present petitioner is transposed, she can claim that against the remaining defendant, i.e. defendant No. 1. But that would not be the same cause of action on which the original plaintiff has relied. That cause of action will he something different in the form of transaction between the petitioner and opponent No. 2 Babaldas. Transposition is normally permissible and necessary in suits between partners for accounts, possession of partnership property or for partition, where there are some pro forma defendants.
9. In Ram Prasad Choudhary v. Mst. Fulia : AIR1964Pat508 , the Patna High Court considered that where it is necessary for a complete adjudication of the questions involved in the suit, parties may be added or transposed, but where the scope or character of the suit will be altered by the addition or transposition (as where the pro forma defendants do not wish to adopt the plaintiff's case), such addition or transposition cannot be permitted.
10. In Jagabandhu Saha v. Haris Chandra Sil AIR 1922 Cal 459, the question was whether transfer by one Kumari was for legal necessity and whether the transfer created an indefeasible title. It was found that the plaintiff could succeed only on the basis that the sale by Kumari was for legal necessity. The fourth and fifth defendants, if they sued as plaintiffs, could succeed only on the contradictory hypothesis that the sale was not for legal necessity and did not affect their interest as reversioners. Therefore, it was held that if the application had been granted it would have been necessary for the added plaintiffs to discard the entire evidence on the record and succeed on a case which not only was not made in the first Court but was absolutely contradictory to the evidence put forward. This was pertaining to the transposition at the appellate stage.
11. Mr. Barot for the petitioner made a grievance that the aforesaid decisions only refer to the provisions of Order 1, Rule 10 of the Code and the Courts had no occasion to consider the provision of Order 23, Rule 1-A of the Code which is added now. It is true that the provision of Order 23, Rule 1-A is new, but would that change the character and requirement of transposition? It merely permits that if the plaintiff withdraws the suit, the defendant can request the Court to transpose him as plaintiff if the substantial question has to be decided against the remaining defendant. But that is circumscribed by the position under Order 1, Rule 10 of the Code, meaning thereby, under what circumstances transposition can be permitted. This provision is added, as considered earlier, in order to facilitate a pro forma defendant who has identical interest from being denied his right if he rested on the success of the plaintiff's suit and the plaintiff wanted to withdraw the suit. So, in that case if such a defendant is transposed as plaintiff, he can effectively get adjudication of his right.
12. There is an old decision of the Bombay High Court in Edulji Muncherji Wacha v. Vullebhov Khanbhoy, (1883) ILR 7 Bom 167. It was a suit in partnership. The plaintiff in the Partnership suit, to which there were 21 defendants, applied to the Court for leave to withdraw the suit, or that the suit might be dismissed. 10 of the defendants supported the plaintiff's application. Two of the defendants objected, and applied under Section 32 of the Civil P. C. 1877, that they might be made plaintiffs and that the plaintiff might be made a defendant. The Bombay High Court (West. J.) considered that the provision of transposition to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, means that the questions in an ordinary suit arise on the allegations made by the plaintiff, and prima facie it would appear that if the plaintiff withdraws, the allegations are withdrawn, and no question remains for the Court to decide. It was further held that a partnership suit is a suit of a peculiar character, and the parties to such a suit do not stand to each other precisely in the same relation as parties to suits generally. Each of the parties to a partnership suit, however he may be formally ranked, is really in turn plaintiff and defendant, and in both capacities comes before the Court for the adjudication of his rights relatively to the other partner, which the Court endeavours to determine by its decree. Therefore, the transposition was considered to be proper. So, these principles would not go away even if under Order 23, Rule 1-A of the Code provision is added permitting the defendant to request the Court to transpose him as plaintiff when the original plaintiff withdraws the suit. Courts even without this provision have considered as to what would be the position, when a plaintiff attempts to withdraw the suit on the rights of all other pro forma plaintiffs or pro forma defendants or defendants who have a cause of action identical to that of the plaintiff. In order to make a clear provision, this provision was added, though it was also considered on the same lines earlier irrespective of this provision. So, the normal consideration for transposition, that interest of the person to be transposed as plaintiff must be identical to the interest of the plaintiff who tries to withdraw, would not go away.
15. In the result, therefore, the revision petition is dismissed with costs.Rule is discharged.