REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  7292 OF 2009

R.DHANASUNDARI @ R. RAJESWARI Appellant(s)

VS.

A.N. UMAKANTH & ORS. Respondent(s)

Dinesh Maheshwari, J.

This appeal by special leave is directed against the judgment and order

dated 12.10.2006, as passed in C.R.P. (PD) No. 10 of 2006, whereby the High

Court of Judicature at Madras has upheld the order dated 07.07.2005, as passed

in  O.S.  No.  219  of  2004  by  the  District  Munsif,  Chengalpattu  allowing  the

application filed by defendant Nos. 3 to 6 for transposing them as plaintiffs, after

the existing plaintiffs sought permission to withdraw the suit.

2.    The prayer of defendant Nos. 3 to 6 to be transposed as plaintiffs under

Order XXIII Rule 1-A read with Order I Rule 10 of the Code of Civil Procedure,

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1908 (‘CPC’), came to be made and allowed in somewhat peculiar set of facts

and circumstances, which could be noticed, in brief, as follows:-

(a) The civil suit in question was originally instituted in the Court of the

Principal Subordinate Judge, Chengalpattu by A.C. Nataraja Mudaliar (original

plaintiff) against A.V. Manoharan (defendant No.1 - respondent No. 1 herein) and

R.  Dhanasundari  @  R.  Rajeshwari (defendant  No.  2  -  appellant  herein)  for

cancellation  of  the  sale  deed  dated  23.03.1985,  which  was  executed  by

defendant No. 1 in favour of defendant No.2. This suit was initially registered as

O.S. No. 122 of 1989.

(b) The assertions in the plaint had been that the suit schedule property

was purchased in the name of a partnership firm M/s South India Engineering

Works of which, the plaintiff and the defendant No. 1 were the partners; and that

the said firm was dissolved by a deed of dissolution dated 22.05.1971 whereby,

the defendant No. 1 A.V. Manoharan was relieved of the assets and liabilities of

the firm and the suit  schedule property vested with the plaintiff  A.C. Nataraja

Mudaliar. It was alleged that the defendant No. 1 A.V. Manoharan, despite having

relinquished the rights in the suit property, sold the same to the defendant No. 2

under the impugned sale deed dated 23.03.1985.  

(c) During  pendency  of  this  suit,  the  original  plaintiff  A.C.  Nataraja

Mudaliar expired on 19.05.1988  leaving behind 3 sons and 4 daughters as his

legal representatives, who were impleaded as plaintiff Nos. 2 to 8 in the suit. One

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of  the  sons  of  the  original  plaintiff  namely,  A.  N.  Umakanth  (plaintiff  No.  5-

respondent No. 1 herein) was extended power of attorney by his siblings.

(d) The suit was decreed ex parte in the year 1995 but later on, the ex

parte decree was set aside and the suit  was restored to the original number.

However, in the interregnum, the respondent No. 1 A. N. Umakanth, the power of

attorney holder of all the legal representatives of the original plaintiff, sold the suit

property  to  three  persons,  namely  Ramasamy,  Dhanam  Ramasamy  and

Venkatasubramanian (respondent Nos. 2 to 4 herein) through a registered sale

deed dated 04.07.1995. In view of this transaction, upon restoration of the suit,

the  said  purchasers  moved  an  application  (IA No.  135  of  2002)  for  being

impleaded as plaintiffs. This application was allowed on 21.06.2002 and thereby,

the said purchasers were allowed to join the suit as plaintiffs Nos. 9 to 11.

(e) However, the other plaintiffs (Nos. 2 to 4 and 6 to 8) took exception

to the aforesaid transaction of sale by the plaintiff No. 5; they revoked his power

of attorney and moved an application (IA No. 468 of 2003) for transposition of the

plaintiff  No.  5 and his  purchasers (plaintiff  Nos. 9 to 11) as defendants.  This

application was allowed on 25.06.2003 and, accordingly, the plaintiff No. 5 and

plaintiff Nos. 9 to 11 were transposed as defendants 3 to 6 in this suit.

(f) Thus,  at  and  until  the  given  juncture,  the  proceedings  and

developments  had  been  that  in  the  civil  suit  for  cancellation  of  sale  deed

executed by the defendant No. 1 in favour of the defendant No. 2, the original

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sole plaintiff  had expired; his legal representatives came on record as plaintiff

Nos. 2 to 8 with plaintiff No. 5 being the power of attorney holder of the other

plaintiffs;  the  suit  was  decreed  ex  parte and  the  said  attorney  sold  the  suit

property to three persons; when the ex parte decree was set aside and the suit

was restored to its number, the said purchasers came on record as plaintiff Nos.

9 to 11; and later on, the said seller and purchasers (plaintiff Nos. 5 and 9 to 11)

were transposed as defendant Nos. 3 to 6. At this juncture and with such change

of  complexion,  the  suit  was  transferred  to  the  file  of  District  Munsif  Court,

Chengalpattu and was renumbered as O.S. No. 219 of 2004.   

(g) After having, thus, been transferred and renumbered with addition

and transposition in the array of parties, the suit in question proceeded in trial

but, when the matter reached the stage of cross-examination of the defendants'

witness DW-3, the plaintiffs filed a memo seeking permission to withdraw the suit,

for the matter having been settled with the defendant Nos. 1 and 2. Though the

defendant Nos. 1 and 2 did not oppose the prayer so made by the plaintiffs but

then,  the  defendants  3  to  6  (who were  transposed as  defendants  from their

earlier position as plaintiffs) filed objections to the memo for withdrawal and also

filed the application (IA No. 153 of 2005) under Order XXIII Rule 1-A read with

Order I Rule 10 CPC with the prayer that they be transposed as plaintiff Nos. 2 to

5 in this suit.  

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3. The said application for transposition (IA No.  153 of  2005) came to be

allowed by  the  Trial  Court  by  its  impugned  order  dated  07.07.2005 with  the

following observations:-

“Upon perusing the petition, counter it reveals that the original suit  was filed in the year 1989. Originally the petitioner has filed the above suit as a Power of Attorney agent of plaintiffs. When  the  power  was  in  force,  the  power  given  to  the petitioner  was cancelled.  When the power  was inforce,  the petitioner sold most of the suit item. The purchasers moved an application to implead themselves as plaintiffs in the above suit and the same was allowed. Later the plaintiffs have filed application to transpose the plaintiffs 5, 9 to 11 as defendants and the same was allowed. Later the trial commenced and the plaintiff  witness  had  been  examined.  On  the  side  of defendants  3  witnesses  were  examined.  The  cross- examination of 2nd defendant’s husband has been deferred. At this  stage  the  plaintiff  and  the  2nd defendant  entered  into compromise  and  filed  a  memo  stating  that  the  suit  is  not pressed  as  settled  out  of  court.  The  petitioner  sold  the property while the power of attorney was in force. Therefore the petitioner has interest in the out come of the suit. When the case is at the tail end and the suit is of the year 1989 and if  the suit  is allowed to be withdrawn this petitioner has no remedy and is not in a position to get any remedy in this suit. More over the petitioners if file fresh suit, the said suit will be barred by limitation. When all the parties to the suit entered into compromise, the court will permit the parties to withdraw the suit. But in this case only the plaintiff and 2nd defendant alone  entered  into  compromise.  The  remaining  defendants are  not  parties  to  the  compromise.  Since  there  is  no compromise with other defendants, this court will not accept as the matter is fully settled.

For the aforesaid reasons and in the interest of justice and to settle the matter once for all and determine the rights of the parties, this petition is allowed.”

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4. Aggrieved by the order aforesaid, the defendant No. 2 (appellant herein)

preferred the revision petition that has been considered and dismissed by the

High Court in its impugned order dated 12.10.2006 while observing as under:-

“15…….it is seen in this case that the defendants 3 to 6 who seek  to  transpose  themselves  as  plaintiffs,  were  originally arrayed as plaintiffs 5 and 9 to 11.  On the ground that the 5 th plaintiff (now the 3rd defendant) acted against the interest of the other plaintiffs (his own brothers and sisters) in selling the suit property to the defendants 4 to 6, the plaintiffs got them originally transposed as defendants 3 to 6 in I.A. No. 468 of 2003.   In  other  words,  the  present  defendants  3  to  6  are subsequent purchasers, pendente lite, they had a substantial issue to be adjudicated as against the defendants 1 and 2, when they were plaintiffs 5 and 9 to 11.  By virtue of  their transposition  as  defendants  3  to  6,  in  the  year  2003,  they cannot  be  said  to  have  lost  their  rights  to  have  the  same question adjudicated as against the defendants 1 and 2.  As a matter of fact, the 3rd defendant’s right to prosecute the suit as a plaintiff, flowed out of his status as one of the legal heirs of the original sale relief prayed for in the suit filed, by his father did not get annulled by his transposition as the third defendant in the year 2003.

16.  If  the  plaintiffs  contest  the  suit  and  succeed,  such success would have automatically enured to the benefit of the defendants 3 to 6.  Therefore, the defendants 3 to 6 can be said to have an identity of interest with the plaintiffs.

17. Under such circumstances, I am of the view that the Trial Court was right in ordering the transposition of the defendants 3 to 6 as plaintiffs.   Therefore,  I  find no merits  in the Civil Revision  and  the  Civil  Revision  Petition  is  dismissed.   No costs.  The connected CMP & VCMP are closed.”

5. Assailing the order aforesaid, learned counsel for the appellant (defendant

No. 2) has strenuously argued that the transaction concerning defendant Nos. 3

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to 6 having taken place much after the institution of the suit, these defendants

have no cause of action against defendant Nos. 1 and 2 and hence, they cannot

be transposed as plaintiffs; that the right of the dominus litus plaintiffs to withdraw

the suit under Order XXIII Rule 1 CPC cannot be curtailed, especially when they

do not seek any liberty to file a fresh suit; and that the subsequent purchasers

have no legal right to seek cancellation of the sale deed which was executed in

favour  of  the  appellant  way  back  in  the  year  1985.  These  submissions  are

supported on behalf of the respondent Nos. 6 & 8 to 11 (the plaintiffs) with the

contentions that the subsequent purchasers have a separate and distinct cause

of  action,  who  ought  to  institute  a  separate  suit  and  have  no  right  to  be

transposed as plaintiffs in the present suit.

6. Per contra,  learned counsel for the respondent No. 1 has duly supported

the order impugned with reference to the subject matter of the suit as also the

developments  that  have  taken  place  after  filing  of  the  suit  and  with  the

submissions  that  defendant  Nos.  3  to  6  have  identical  interest  to  seek

cancellation of the sale deed executed by the defendant No. 1 in favour of the

defendant No. 2.  Hence, according to the learned counsel,  when the existing

plaintiffs  seek  to  withdraw,  the  defendant  Nos.  3  to  6  have  a  right  to  be

transposed as  plaintiffs  so  as  to  seek  adjudication  of  their  claim against  the

defendant Nos. 1 and 2 in relation to the suit property.

7. Having  bestowed  anxious  consideration  to  the  rival  submissions  and

having examined the record with reference to the law applicable, we are clearly

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of the view that on the facts and in the circumstances of this case, upon the

existing plaintiffs seeking permission to withdraw under Order XXIII Rule 1 CPC,

the defendant Nos. 3 to 6 have rightly been allowed to be transposed as plaintiffs

under Order XXIII Rule 1-A read with Order I Rule 10 CPC and to continue with

the suit, as originally filed against the defendant Nos. 1 and 2.

8. The law of procedure relating to the parties to a civil  suit  is  essentially

contained in Order I of the Code of Civil Procedure, dealing with various aspects

concerning joinder,  non-joinder and mis-joinder of  parties.  Rule 10 of  Order I

specifically  provides for  addition,  deletion and substitution of  parties;  and the

proposition for transposition of a party from one status to another, by its very

nature, inheres in sub-rule (2) of Rule 10 of Order I CPC that reads as under:-

"(2) Court may strike out or add parties. - The Court may at any  stage  of  the  proceedings,  either  upon  or  without  the application  of  either  party,  and  on  such  terms  as  may appeared to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who or to have been  joined,  whether  as  plaintiff  or  defendant,  or  whose presence  before  the  Court  may  be  necessary  in  order  to enable  the  Court  effectually  and  completely  to  adjudicate upon  and  settle  all  the  questions  involved  in  the  suit  be added."

8.1 On the  other  hand,  the  law of  procedure  in  relation  to  withdrawal  and

adjustment of suits is contained in Order XXIII of Code of Civil Procedure. As per

Rule  1  thereof,  a  plaintiff  may  seek  permission  for  withdrawal  of  suit  or

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abandonment  of  a  part  of  claim.  Rule  1-A thereof1 deals  with  an  eventuality

where  the plaintiff  withdraws his  suit  or  abandons his  claim but  a  pro forma

defendant has a substantial  question to be decided against  the co-defendant.

This Rule 1-A of Order XXIII CPC reads as under:-

“R.1-A. When transposition of defendants as plaintiff may be permitted.- 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.”

9. It remains trite that the object of Rule 10 of Order I CPC is essentially to

bring on record all  the persons who are parties to the dispute relating to the

subject matter of the suit so that the dispute may be determined in their presence

and the multiplicity of proceedings could be avoided. This Court explained the

principles,  albeit  in  a  different  context,  in  the  case of  Anil  Kumar  Singh v.

Shivnath Mishra: (1995) 3 SCC 147 in the following:-  

"7.  …..  The object  of  the rule  is  to bring on record all  the persons who are parties to the dispute relating to the subject- matter  so  that  the  dispute  may  be  determined  in  their presence  at  the  same  time  without  any  protraction, inconvenience and to avoid multiplicity of proceedings."

10. As per Rule 1-A ibid., in the eventuality of plaintiff withdrawing the suit or

abandoning his claim, a pro forma defendant, who has a substantial question to

be decided against  the  co-defendant,  is  entitled  to  seek  his  transposition  as

1 Inserted by the Amendment Act No. 104 of 1976  

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plaintiff for determination of such a question against the said co-defendant in the

given suit  itself.  The very nature of the provisions contained in Rule 1-A  ibid.

leaves nothing to doubt that the powers of the Court to grant such a prayer for

transposition  are  very  wide  and  could  be  exercised  for  effectual  and

comprehensive adjudication  of  all  the matters  in  controversy  in  the  suit.  The

basic  requirement  for  exercise  of  powers  under  Rule  1-A  ibid.  would  be  to

examine if the plaintiff is seeking to withdraw or to abandon his claim under Rule

1 of Order XXIII and the defendant seeking transposition is having an interest in

the  subject-matter  of  the  suit  and  thereby,  a  substantial  question  to  be

adjudicated  against  the  other  defendant.   In  such  a  situation,  the  pro  forma

defendant is to be allowed to continue with the same suit as plaintiff,  thereby

averting  the  likelihood  of  his  right  being  defeated  and  also  obviating  the

unnecessary multiplicity of proceedings.  

11. The  present  one  is  clearly  a  case  answering  to  all  the  basics  for

applicability of Rule 1-A of Order XXIII read with Rule 10 of Order I CPC.  As

noticed, the principal cause in the suit is challenge to the sale deed executed by

defendant No. 1 in favour of defendant No. 2, with the original plaintiff asserting

his ownership over the property in question.  After the demise of original plaintiff,

his sons and daughters came to be joined as plaintiff Nos. 2 to 8 with plaintiff No.

5  being  the  power  of  attorney  holder  of  all  the  plaintiffs.  After  the  suit  was

decreed  ex parte, the plaintiff No. 5 transferred the property in question to the

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aforesaid three purchasers, who were joined as plaintiff Nos. 9 to 11 when the ex

parte decree was set aside and suit was restored for  bi parte hearing.  In the

given status of  parties,  even if  the plaintiff  Nos. 5 and 9 to 11 were later on

transposed as defendant Nos. 3 to 6, the suit remained essentially against the

defendant Nos. 1 and 2, that is, in challenge to the sale deed dated 23.03.1985,

as executed by the defendant No. 1 in favour of the defendant No. 2.  In regard

to this cause, even if  plaintiff  Nos.  5 and 9 to 11 came to be transposed as

defendant Nos. 3 to 6, their claim against defendant Nos. 1 and 2 did not come to

an end; rather, the interest of the existing plaintiffs as also the defendant Nos. 3

to 6 had been one and the same as against the defendant Nos. 1 and 2.   

12. In the given status of parties and the subject matter of the suit, when the

plaintiffs entered into an arrangement with defendant Nos. 1 and 2 and sought

permission to withdraw under Order XXIII Rule 1 CPC, the right of defendant

Nos. 3 to 6 to continue with the litigation on their claim against defendant Nos. 1

and  2  immediately  sprang  up  and  they  were,  obviously,  entitled  to  seek

transposition as plaintiffs under Order XXIII Rule 1-A CPC.   

13. It is also noteworthy that even if some question is sought to be raised as

regards the rights of the subsequent purchasers (defendant Nos. 4 to 6), the right

of  the defendant  No.  3 (earlier  the plaintiff  No.  5)  to prosecute the suit  as a

plaintiff  remains  rather  indisputable  in  view of  his  status  as  one of  the  legal

representatives of  the original  plaintiff.  The right  of  the said  defendant  No.  3

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(earlier the plaintiff No. 5) to challenge the sale deed between defendant No. 1

and defendant No. 2 did not get annulled only by his earlier transposition as the

defendant; and he cannot be considered bound by the arrangement between the

existing  plaintiffs  and  the  defendant  Nos.  1  and  2. In  the  given  set  of

circumstances,  the  Trial  Court  had  been  justified  in  allowing  the  prayer  for

transposition and the High Court has rightly declined to interfere.  

14. For  what  has  been  discussed  hereinabove,  this  appeal  fails  and  is,

therefore, dismissed.

...…….……………………J   (UDAY UMESH LALIT)

      ….…………………………J   (DINESH MAHESHWARI)

New Delhi, Dated: 06th March, 2019

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