S.K. Mal Lodha, J.
1. This order will dispose of two applications : (i) application dated April 11, 1984 under Order XXIII, Rule 1 and Section 151 CPC filed on behalf of the appellant and (ii) application dated April 17, 1984 under Order I, Rule 19 and Section 151 CPC read with sections 46 and 49 of the Rajasthan Municipalities Act (No. XXXVIII of 1959) (for short 'the Act' herein) filed on behalf of respondent No. 3 for transposing him as appellant.
2. An election petition under Section 36 of the Act was filed by the appellant against the respondents. Respondent No. 1 is the elected member and respondents No. 2 to 4 are defeated candidates and respondent No. 5 is Returning Officer, Sojat Municipal Elections, which were held on February 19, 1982. After trial, the learned Munsif, Sojat by his judgment dated October 23, 1982 dismissed the election petition and held that respondent No 1 Pokar Ram is a properly elected member off, Ward No. 16 of the Municipal Board, Sojat. An appeal was filed by the appellant Under Section 46 of the Act on November 26, 1982 questioning the correctness of the judgment dated October 29, 1982 of the Munsif dismissing the election petition. On January 5, 1983 on behalf of the appellant an application was filed praying therein that the appellant may be allowed to withdraw the appeal. Thereafter, an application under 0-1, Rule 19 and Section 151 CPC read with Section 46 of the Act was submitted on behalf of respondent No. 3 Hariram, the (sic)defeatedkcandidate on January 6, 1983 that he may be transposed as the appellant in place of respondent No. 3. The Court by its order dated January 30, l983 ordered for the issuance of the notice on both the aforesaid applications to respondents No. 2, 4 and 5. However, on February 28,1983, the appellant moved an application that he does not want to withdraw the appeal but wants to prosecute it further, and, therefore, he may be allowed to withdraw the withdrawal application. That application was contested by respondent No. 1 by filing a reply on various grounds. This Court by its order dated April 7, 1983 held that as the appellant has filed an application to withdraw the withdrawal on February 28, 1983, the appeal cannot be dismissed as withdrawn in pursuance of the withdrawal application dated January 6, 1983. Both the applications dated January 6, 1983 and February 28,1983 were, accordingly, dismissed of.
3. However, thereafter on April 11, 1984, another application was filed by the appellant which is also signed by his counsel Shri S.K. Sharma, Advocate stating that the appellant does not want to prosecute this appeal butt wants to withdraw the same and, therefore, he may be allowed to withdraw the appeal. On April 17, 1984, another application under'01, 10 CPC and Section 151 CPC read with sections 46 and 49 of the Act was filed praying that respondent No. 3 may be allowed to be transposed as the appellant in place f respondent No. 3. On behalf of respondent No. 1 a reply was filed on August 23, 1984 supported by the affidavit of respondent No. 1.
4. I have heard Mr. K.C. Samdariya, learned Counsel for the appellant, Mr. Rajendra Mehta, learned Counsel for respondent No. 1 Mr. B.M. Singhvi, learned Counsel for sespondent No. 3 and Mr. H.N. Calla, learned Government Advocate for respondent No. 5.
5. I propose to deal with the application filed on behalf of respondent No. 3. Hariram under Order 1, Rule 10 CPC on April 17, 1984 first.
6. The principal question involved is whether respondent No. 3, a defeated candidate who has not filed appeal against the dismissal of election petition should be transposed as appellant in appeal when the appellant Ramchandra who has filed the appeal does not want to prosecute the appeal and prays for its withdrawal?
7. Section 46 of the Act provides for appeals from orders of Judge. Section 46(2) of the Act is as follows:
46(2). The High Court shall subject to the provisions of this Act, have the same powers, jurisdiction and authority, and follow the same procedure, with respect to an appeal under this Section as if the appeal were an appeal from an original decree passed by a civil court situated within the local limits of its civil appellate jurisdiction.
Section 49 of the Act makes provision for withdrawal of election petitions. It reads as under:
49. Withdrawal of petitions: (1) An election petition may be withdrawn only by leave of the udge.
(2) Where an application for withdrawal is made Under Sub-section (i) notice thereof fixing a date for the hearing of the application shall be given to all other parties to the petition.
(3) If there are more petitioners than one, no application to withdraw an election petition shall be made except with the consent of all the petitioners.
(4) No application for withdrawal shall as granted if in the opinion of the Judge such application has been induced by any bargain or consideration which ought not to be allowed.
(5) If the application for withdrawal is granted the petitioner shall be ordered to pay the costs of the respondents thereafter incurred on such petition thereof as the Judge may think fit.
Section 59 deals with statement of election petitions. According to it, an election petition shall abate only on the death of a sole petitioner or of the survivor of several petitioners and a notice is necessary in terms of Sub-section (2) of Section 50 Of the Act to all the respondents regarding adamant of the petition. Section 51 of the Act is important. It provides for substitution on death of petitioner. It reads as under:
Substitution on death of petitioner--After a notice of the statement is served Under Sub-section (2) of Section 50, any of the respondent who might himself have been a petitioner may within fourteen days of such service, apply to be substituted as petitioner and do compliance with the conditions of Section 53 as to security shall be entitled to be so substituted and to continue the proceedings upon such, terms as the Judge may think fit.
Procedure for election petition has been provided in Section 41 of the Act. Subsection (3) of Section 41 of the Act so far as it is material is as follows:
Section 41 (3). Except so far as may be otherwise provided by this Act or by any made rule thereunder, the procedure provided in the Code of Civil Procedure, 1908 (Central Act V of 1908) in regard to the trial of suits shall, so far as it is not inconsistent with this Act or any rule and so far as it can be made applicable, be followed in the (sic)hearirr of election petitions.
8. The contention of Mr. Bird Mai Singhvi, learned Counsel for respondent No. 3 is that in this case there is affirmity of interest between the appellant and respondent No. 3 and that though, respondent No 3 wanted to file appeal, he did not as the appellant had preferred the appeal and he was advised that as the appeal has already been filed by the appellant, there is no necessity for filing a separate appeal, for be will have a right to address in the appeal. He submitted that complete adjudication upon the question involved in the appeal and to avoid the multiplicity of proceedings, respondent No. 3 should be transposed as appellant in case of withdrawal of withdrawal of appeal by the the sole appellant Ramchandra. In this connection, learned Counsel has referred to Bhupendra v. Rajeskwari : 1SCR884 , Saila Bala v. Nirmala Sunderi AIR 1956 SC 393 Inder Nath v. Ram Dass ILR (1960) Delhi 45, Ajito Debi v. Hosssan ara Begum, : AIR1977Cal59 , Govinda Iyer v. Kumar AIR 1980 Mad 233.
9. In Bhupendra's case : 1SCR884 , the proforma defendants asked that a decree should be passed in favour of the appellant. It was observed therein as follows:
If there was a technical objection to this, the Court clearly had power at any stage of the proceedings to remedy the defect under Order- I, Rule 19 CPC, by adding the proforma defendants as co-plantiffs with the appellant. Such a course should in their Lordships opinion always be adopted where it is necessary for a complete adjudication, been the question involved in the suit and to avoid multiplicity of proceedings.
In Saila Bala's case AIR 1956 SC 393, one Section (appellant then on record) dropped the fight with the first respondent. Their Lordships observed that no embarassment would result in their being on record two appellants with conflicting interest. It was observed as under:
But in any event, the Court can, if necessary take action suo moto either under Order 1, Rule 10 CPC or in its inherent jurisdiction and transpose Sudhir Kumar Mittal as second respondent in the appeal.
Their Lordships approved Vanjiappa Goundan v. (sic)Annamilai Chettiar AIR 1949 Mad 69 The principle laid down in Saila Bala's AIR 1956 SC 393 is that the Court can, if necessary, take action suo moto either under Order I, Rule 10 CPC or in its inherent jurisdiction and can transpose an appellant as respondent in the appeal.
10. So far as Inder Nath's case ILR 1960 Delhi 45 is concerned, it is distinguishable on facts. It may be stated that in, that case, respondent No. 5 had submitted an application for transposition prior to the application for withdrawal of the appeal. In these facts, it was observed as follows:
In our opinion, in circumstances like the present, it is for the court to see whether or not the interests of justice and equitable considerations demand that the application of respondent No. 5 for transposing him as an appellant be decided before deciding the appellants' application for withdrawing his appeal. Giving due weight to the averments made by the parties in their respective applications, we are definitely of the view that it would be more just and equitable if the application of respondent No. 3 which is prior in time is decided first.
What was held in Ajita Devi's case is that the legal right of the plaintiffs to withdraw the suit is not unconditional or absolute and the Court can only exercise its jurisdiction in favour of the plaintiffs where the interests of the defendants are not adversely affected in any way, if the plaintiffs are allowed to withdraw the suit. It was further observed as follows:
We are, therefore, satisfied that where an application simplici-ser has been made under Order XXIII rule 1 the Court cannot compel the plaintiff to proceed with the suit and the defendant cannot be alleged to complain against such order. But where there is an affirmity or identity of interests between the plaintiffs and one or more of the defendants, the plaintiffs cannot be allowed to withdraw the suit if an application on behalf of such defendants having an interest in the suit is made for their transposition to the category of plaintiffs and for transposition of the plaintiffs to the category of the defendants under Order I, Rule 10.
The provisions of Order XXIII, Rule 1A and Section 107 CPC were considered in Govinda Iyer's case AIR 1980 Mad 233 and it was observed as under:
here there was likelihood of the scope of appeal being widened the court would be reluctant lo transpose a respondent as an appellant. Similarly, the appellate court will not exercise its power of transaction and will not allow a respondent to be transposed to the category of an appellant, where the result of such transaction is likely to be that new grounds not common to the appellants already on the record may have to be determined for disposing of the appeal.
The principles that can be deduced from the aforesaid decisions relied on by the learned Counsel for respondent No. 3 are that under Order I, Rule 10 CPC for a complete adjudication of the point in controversy, the defendant can be transposed as plaintiff. This can also be done to avoio multiplicity of proceedings. The appellant has a right to withdraw the appeal but in appropriate cases, where the interest of the respondents is going to be adversely affected, the respondent/s can also be transposed as appellant/s despite withdrawal of the appeal by the appellant.
11. Before I proceed further, it will be relevant to state that the election petition was filed by the appellant on the ground that respondent No. 1 has withdrawn his candidature on February 8, 1982 and, therefore, he could not contest the election. One of the issues framed was in respect of this point. Pokarram (respondent No. 1) had filed the nomination forms. The nomination paper which he filed as an independent candidate was withdrawn by him by means of Ex P 6. The question before the Tribunal was whether he has withdrawn his candidature. It was found by the Tribunal that withdrawal of the one nomination form did not amount to the withdrawal of the candidature. After the withdrawal of the nomination power, list of candidates contesting elections was prepared and the name of the petitioner was there. The election petition was dismissed. Against that, the appeal was filed by the appellant. It is not the case of the withdrawal of the election petition by appellant Ramchandra, who had filed the election petition. There has been adjudication by the Tribunal. As the adjudication has already taken place and after that the appeal has been filed, the question of multiplicity of the proceedings does not arise. We have also to take into consideration the nature of the election petition and the nature of the relief which is necessary for its determination. The principles governing withdrawal of the election petitions cannot be made applicable to the withdrawal of the appeals which are filed after the decision of the election petitions. In such matters, the appellant has right to withdraw it. In this connection Bijayananda v. Satrughna Sahu, : 3SCR22 may usefully be referred to. That was a case under the Representation of the People Act, 1951 (for short 'the Act of 951'). The election petition in that case was dismissed on the ground that the petition was not in accordance with the provisions of Section 82 of the Act of 1951. One Sections appealed to the High Court under Section 16A of the Act of i95. The appeal was heard and it was fixed for judgment and a day prior to the date fixed for judgment, an application was filed by Sections for withdrawal of appeal as he did not (sic)wai t to prosecute it further. A contention was raised that he was entitled to withdraw the appeal. He was supported in this by the appellant but the other two respondents objected to the withdrawal and contended that Sections had no absolute right to withdraw the appeal on the analog} of Order XXIII, Rule 1 of the CPC and that principle analogous t sections 100 and 110 of the Act of 1951 applied to an application for withdrawal of an appeal. The High Court held that it must be guided by the principles con ained in sees. i00 and 110 of the Act of i95l when considering an application for withdrawal of the appeal before it- As regards, the right of withdrawal their Lordships of the Supreme Court observed as under
The power of the High Court under Section 116 when hearing an appeal from an (sic)eieotion petition is the same as its power when hearing an appeal from an original decree, and the procedure is also the same, for there is no express provision to the contrary in the matter of withdrawal of an appeal in the Act. Therefore, when an appellant under Section 116A makes an application for-an unconditional withdrawal of the appeal, the power of the High Court unconditional with its power in an appeal from an original decree, is to allow such withdrawal and it cannot say that it will not permit the appeal to be withdrawn We are, therefore, of opinion that the High Court was in error in importing the principles of sections 109 and 110 of the Act which, deal only with the withdrawal of election petitions and not with the withdrawal of appeals.
It has been urged that in this view an appeal may be withdrawn even where withdrawal has been induced by bargain and this would interfere with priority of elections. As the statute stands it seems that the intention was that the provisions about withdrawal and abatement would apply to a petition only when it is either before the commission or the tribunal. It may have been intended that only one proceeding should be specially provided for and that would ensure the purity of elections. If it was intended that Sections 109 and 110 should also apply to an appeal for which provision was made by Section 116A, that intention has not been given effect to by proper language In any case, the position is not the same when an appeal is being withdrawn for generally speaking at that stage a trial has taken place before the tribunal which would ordinarily safeguard such purity, We, therefore, see no reason to import the principles of Sections 109 and 110 into withdrawal of appeals on this ground.
Order XXXXX, Rule 1A CPC has been inserted by the CPC Amendment, 1976, which is as follows:
1-A., When transposition of defendants as plaintiff may as permitted : Where a suit is withdrawn or abandoned by a plaintiff under Section I and a defendant applies to be transposed as a plaintiff under Rule 10 of O.I, the Court shall in considering such application, have due regard to the question whether the applicant has a substantial question to the decided as against any of the other defendants.
It has been inserted to provide for the circumstances where a defendant may be allowed to transpose as a plaintiff where the suit is withdrawn or abandoned by the plaintiff. According to this, while considering application for transposition under Order I, Rule 10 CPC due regard has to be given to the question whether the person who wants to be transposed has a substantial question to as decided as against any of the other defendants. In this case, as stated above, the Tribunal had found that respondent No. 1 had filed two nomination forms. He withdrew one and thereafter, his name was shown as a candidate for contesting the election. It has also been found that there is only the withdrawal of nomination form and not the withdrawal of candidature. In these circumstances, can it be said that there is any substantial question raised by respondent No. 3. After disposal of the election petition, respondent No. 1 had acquired a valuable right and the appellant Ramchandra only chose to challenge that and when he does not want to prosecute the appeal and prays that it may be dismissed as withdrawn, how cm the prayer be declined on the ground this respondent No. 3 who had contested the election petition and had been defeated did not choose to file appeal. Order I, Rule 10(2) is discretionary. In Santuram Hari v. Trust of India Assurance Co. AIR 1945 Bombay 11 it was observed as under:
I agree that in most cases the Court would not exercise its discretion in transposing defendants as party plaintiffs where a valuable right acquired by one of the defendants is likely to be taken away or defeated. But in this particular case, looking to all the circumstances, I do not think that I should permit the claim of the policy bolder to be defeated by the insurance company on a narrow technical ground. Finally, the question is on what terms as to costs I should permit defendant 2 to be transposed as a party plaintiff and permit him to make the necessary amendment to the plaint.
The grounds which have been urged by learned Counsel for respondent No. 3 to transpose him as appellant may be good grounds if the election petition is withdrawn but they cannot be availed of as stated in the application under Order I, Rule 10 read with Section 151 CPC. As stated above, the transposition of respondent No. 3 as appellant is not envisaged in the Act except in the circumstances mentioned in sections 51 and 52 of the Act. There is no provision what so ever in the Act for transposition of the respondent as appellant. Order XXIII Rule 1A CPC is very limited for transposition of the applicant as plaintiff in case there is substantial question to be decided as against any of the defendants. So far as respondent No. 3 is concerned, he has no substantial question against the other respondents inclusive of respondent No. 1.
12. For the reasons mentioned in the application, under Order I, Rule 10 CPC read with Section. 151 CPC filed by respondent No. 3 on April 17, 1984, he cannot be ordered to be transposed as appellant.
13. The application under Order. 1. Rule 10 read with Section 151 CPC filed by respondent No. 3 on April 17, 1984 is, accordingly, dismissed.
14. As the sole appellant Ramchandra wants to withdraw the appeal, his application has to be allowed.
15. The result is that the application under Order I, Rule 10 read with Sections 151 CPC is dismissed and the application under Order XXIII, Rule 10 read with Sections 151 CPC is allowed.
16. Both these applications are disposed of accordingly.