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Ghulam Rasool Bhat Vs. Gh. Mohd. Puchoo - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtJammu and Kashmir High Court
Decided On
Case NumberCivil Revn. No. 91 of 1984
Judge
Reported inAIR1985J& K82
ActsJammu and Kashmir Code of Civil Procedure (CPC) , 1977 Svt. - Order 1, Rule 10(1)(2)
AppellantGhulam Rasool Bhat
RespondentGh. Mohd. Puchoo
Appellant Advocate N.A. Kakroo, Adv.
Respondent Advocate B.A. Bashir, Adv.
DispositionRevision dismissed
Excerpt:
- .....statement wherein he stated that the plaintiff or the defendant no. 1 (2?) had no right over the suit business. the land in dispute belonged to him alone and the partnership in question was never acted upon by the parties, which was executed just to obtain a loan from some bank and that too could not materialise. according to him he was the sole owner of the brick kiln and the banksaw which were in his exclusive possession and the defendants had no right over the said business. he further alleged that the suit business was started by him with his own capital and the defendants had neither provided any capital to him nor offered any sort of assistance to him in this behalf.5. the suit appears to have had a chequered career since its institution on 20-8-1981. the issues have been settled.....
Judgment:
ORDER

Syed Mustafa Rizvi, J.

1. This Civil Revision is directed against the order of the learned Sub Judge Baramulla dated 19-6-1984, transferring defendant No. 2 in the suit as the plaintiff and the original plaintiff as defendant No. 2, and has arisen in the following circumstances of the case.

2. The plaintiff instituted a suit for accounts against the defendants on the averments that the parties had purchased a piece of land jointly and installed a brick kiln and a bandsaw over it, in accordance w ith the terms of the partnership deed. According to him the defendants were responsible to run the business and maintain accounts thereof. He alleged that the defendants have not given any cash to the plaintiff from the earnings of the business nor deposited any amount in the Bank. He further alleged that the defendant No. 1 was taking undue advantage of his close relationship with him by misappropriating the ever increasing income of the business and avoiding to show accounts thereof to him.

3. The defendant No. 2 filed his written statement admitting the averments as made by the plaintiff in his plaint.

4. The defendant No. 1 also filed his written statement wherein he stated that the plaintiff or the defendant No. 1 (2?) had no right over the suit business. The land in dispute belonged to him alone and the partnership in question was never acted upon by the parties, which was executed just to obtain a loan from some Bank and that too could not materialise. According to him he was the sole owner of the brick kiln and the banksaw which were in his exclusive possession and the defendants had no right over the said business. He further alleged that the suit business was started by him with his own capital and the defendants had neither provided any capital to him nor offered any sort of assistance to him in this behalf.

5. The suit appears to have had a chequered career since its institution on 20-8-1981. The issues have been settled in the case after two years on 24-9-1983. One of the issues framed in the case related to registration or otherwise of the firm and whether the suit was hit by the provisions of Section 69 of the Partnership Act, and the said issue was to be determined as preliminary one. The plaintiff was directed to produce the requisite certificate of the Registrar of Firms. This order appears to have changed the complexion of the suit leading to disinterestedness of the plaintiff in its prosecution. He sought a couple of opportunities to produce the said certificate and was later on given a final opportunity in this behalf on 29-12-1983. It is on 7-4-1984 that the defendant No. 2 submitted the application for his substitution as the plaintiff in the suit, copy whereof was given to the counsel for the plaintiff and the defendant No. 1. Later on the plaintiff absented himself from appearing in the case along with his counsel, presumably to get it dismissed in default. The Court however did not do so obviously because the defendant No. 2 had already filed an application for his transposition as plaintiff in the case, inter alia on the following grounds :

That he has the same grievance against the defendant No. 1 as the plaintiff had about his misappropriation of funds; plaintiff happens to be the brother-in-law of the defendant No. 1 and were hand in glove with each other in order to grab his share in the partnership concern; that the full account of the firm were maintained by the defendant No. 1 and he is in control of the business right from 1975 and has been in connivance with the plaintiff misappropriating the earnings of the firm; that his interests in the suit business cannot be saved except by his transposition as plaintiff and that of the plaintiff as the defendant in the case. That without transposition as prayed for the Court may not be able to decide and settle the issues involved in the case properly and effectively; that the transposition as prayed for will prevent multiplicity of litigation between the parties.

6. The learned trial Court after hearing the parties came to the conclusion that the original plaintiff and defendant No. 1 were hand in glove with each other for hushing up the claim of defendant No. 2 and that in orderto avoid multiplicity of suits it was just and proper to make inter-transposition of the plaintiff and defendant No. 2. The defendant No, 1 felt aggrieved by this order and hence the revision.

7. I have heard the learned counsel for the parties and have gone through the record.

8. From perusal of the record it transpires that the suit has been going on for about four years and there was a hot contest between the original plaintiff and defendant No. 2 on the one hand, and the defendant No. 1 on the other hand; that is to say, the cause of the original plaintiff and defendant No. 2 was the same against defendant No. 1. The defendant No. 2 was for all purposes only as a pro forma defendant. He had fully admitted the averments as made in the plaint in his written statement. It is after the issues wise framed in the case on 24-9-1983 and the original plaintiff was directed by the Court to produce requisite certificate of Registrar of Firms in respect of the registration of the firm that he seems to have lost interest in the case. For four hearings thereafter he was present through his counsel and was given opportunities for production of the said certificate. Even on fifth hearing viz; 7-4-1984 he was present when the defendant No. 2 filed an application for his substitution as the plaintiff in the case. He even received a copy of the said application for filing of his objections thereto. Thereafter he absented himself and did not even oppose the application of defendant No. 2 for his transposition as the plaintiff. Before framing of issues on 4-7-1983 the parties appear to have sought an adjournment for entering into compromise. Thereafter the original plaintiff apparently changed his attitude vis a vis defendant No. 1 who are admittedly very close relatives. It would thus appear that the original plaintiff and defendant No. 1 have during the course of litigation reached some understanding to each others benefit and to the detriment of the defendant No. 2. All of them i.e. the original plaintiff and the two defendants are admittedly partners to the partnership deed as mentioned in the plaint.

9. In the above background now it is to be seen whether the present case comes within the purview of Rule 10 of Order I of Civil P. C. It would be advantageous to refer to Order I Rule 10(1 and 2) in the first instance which are reproduced as under : --

'10(1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just

(2) The Court may at any stage of theproceedings, either upon or without theapplication of either party, and on such termsas may appear to the Court to be just, orderthat the name of any party improperly joined,whether as plaintiff or defendant, be struckout, and that the name of any person whoought to have been joined whether as plaintiffor defendant, or whose presence before theCourt may be necessary in order to enable theCourt effectually and completely to adjudicateupon and settle all the questions involved inthe suit be added.'

10. From the bare perusal of Rule 10(2) it is manifest that it permits transposition of parties from one category to another but such transposition is generally not allowed if nature of the suit is likely to be altered. Parties can no doubt be added as plaintiff or defendants in order to avoid multiplicity of suits. But the addition must be necessary for final adjudication of the question in dispute. It does not permit misjoinder of causes of action. A person can be added as a co-plaintiff only when he can adopt the plaintiffs' case; persons having conflicting claims cannot be made co-plaintiffs. If the plaintiff and the defendant have conflicting case the question of making the defendant a plaintiff and the plaintiff a defendant does not arise.

11. On applying the above mentioned touchstone to the facts of the present case it would be clear that the transposition of defendant No. 2 as plaintiff is not going to alter the nature of the suit. It would at the same time avoid multiplicity of suits. It would also be necessary for the final adjudication of the question in dispute. Moreover there isapparently no conflict of claims between theoriginal plaintiff and the defendant No. 2. Thetheme of the argument of the learned counselfor the petitioner Mr. N. A. Kakroo was thatthe absence of the original plaintiff in the suithad created a valuable right in defendant No. 1,as the suit was liable to be dismissed in defaultin that event. This argument is correct inprinciple but is not applicable to the facts ofthe present case. The learned trial Court couldnot dismiss the suit for the plaintiff's absencebecause an application was since pendingdisposal before it for transposition of thedefendant No. 2 as the plaintiff in the case.Had it not been so, the Court had no choicebut to dismiss the suit. This argument is, therefore, overruled.

12. The other argument of Mr. Kakroo was that the plaintiffs firm was not registered with the Registrar of Finns and therefore the suit was liable to be dismissed in terms of Section 69 of the Partnership Act. I am afraid that any finding on this question by this Court is going to prejudice the very trial of the suit as the issue formulated by the trial Court in this regard is yet to be decided. The petitioner is free to urge this point before the trial Court itself. This argument too is, therefore, repelled.

13. In view of the above discussion and taking into account all the circumstances of the case the learned trial Court appears to have exercised its jurisdiction rightly and for a just cause, no illegality or irregularity has been committed by it in passing the order impugned.

14. The result is that the revision fails and is hereby dismissed with costs. The file be remitted back to the trial Court for proceeding further with the case in accordance with law. The revision file be consigned to records. The parties shall appear in the trial Court on 7-6-1985. The counsel fee is fixed at Rs. 600/-.


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