Case Note & Summary
In a writ petition under Articles 226 and 227 of the Constitution of India, the petitioner, who was the original plaintiff in Special Civil Suit No. 2375 of 2011, challenged an order dated 6 June 2019 passed by the Joint Civil Judge, Senior Division, Pune, below Exhibit 185. The trial court had allowed an application filed by Defendant No. 6 (the petitioner's sister) to be transposed as a plaintiff under Order 23 Rule 1A of the Code of Civil Procedure, 1908. The dispute involved a suit for partition and separate possession filed in 2011 by the petitioner in respect of several suit properties, including a portion described in plaint paragraphs 1.1(1) and 1.1(2). The defendant No. 6, who was also a sister, had filed a written statement claiming an equal share and supported the petitioner's claim to that extent. However, she alleged that her signatures were obtained on blank papers under undue influence and misrepresentation, and that those signatures were misused to create false and fabricated documents, including a release deed and power of attorney dated 10 August 2006 in favour of Defendants Nos. 1 and 3. In 2012, the defendant No. 6 filed her written statement. On 5 August 2013, the trial court granted interim injunction in respect of some suit properties against Defendants Nos. 1 to 7. Subsequently, the original plaintiff, Defendants Nos. 1 to 5, and Defendant No. 7 (developer) entered into a compromise in appeals from order pending before the High Court, which was recorded on 7 October 2014. That compromise stated that the interim injunction would not apply to a portion of the suit property, and the original plaintiff undertook to withdraw the suit in respect of that portion and hand over vacant possession to the developer. Defendant No. 6 was deleted from the developer's appeal. Claiming that the compromise was executed behind her back, Defendant No. 6 filed a review petition, and on 9 June 2016 the High Court disposed of the review, clarifying that the compromise order was not binding on Defendant No. 6 and would not prevent her from agitating her rights. On 4 March 2016, Defendant No. 6 filed the application for transposition, Exhibit 185. The original plaintiff opposed, arguing that the defendant was trying to challenge a registered release deed which was time-barred, that in a partition suit all parties are plaintiffs and defendants, and that no transposition was necessary. The trial court allowed the application on 6 June 2019. The petitioner then filed the present writ petition. In the High Court, the petitioner's counsel argued that the transposition was wrongly allowed because there was a conflict of interest between the original plaintiff and Defendant No. 6, particularly after the compromise regarding the said portion of the suit property. The petitioner contended that the original plaintiff was no longer interested in prosecuting the suit for that portion, while Defendant No. 6 was specifically interested, leading to mis-joinder of cause of action and parties. The petitioner further argued that Defendant No. 6 could file a separate suit. On the other hand, Respondent No. 8 (Defendant No. 6) argued that she was left with no option but to seek transposition because the compromise was entered behind her back, and the High Court had clarified that the compromise was not binding on her. She submitted that all ingredients of Order 23 Rule 1A CPC were satisfied, including that the rule applied to partial withdrawal or abandonment of the suit. The judgment text provided does not include the court's analysis and final decision.
Headnote
A) Civil Procedure - Transposition of Defendant as Plaintiff - Order 23 Rule 1A CPC - Whether a defendant can be transposed as plaintiff when there is a conflict of interest with the original plaintiff on some suit properties - Petitioner argued interests are not identical and mis-joinder results; Respondent argued all ingredients of Order 23 Rule 1A satisfied, including partial withdrawal/abandonment (Paras 10-11). B) Civil Procedure - Withdrawal or Abandonment of Suit - Order 23 Rule 1, 1A CPC - Whether Order 23 Rule 1A applies to partial withdrawal or abandonment of suit - Respondent submitted that Rule 1A refers to 'withdrawal or abandonment of suit by Plaintiff under Rule 1', which includes partial withdrawal; Petitioner contended the suit remains pending and there is no need for transposition (Paras 9-10). C) Civil Procedure - Joinder of Parties and Causes of Action - Order 23 Rule 1A CPC - Whether transposition caused mis-joinder of cause of action and parties because the original plaintiff compromised the dispute with defendant developer regarding a portion of property - Petitioner asserted transposition would combine inconsistent causes of action; Respondent contended transposition necessary to protect her rights after compromise not binding on her (Paras 9-10).
Issue of Consideration
Whether the transposition of Defendant No.6 as plaintiff under Order 23 Rule 1A CPC was justified despite alleged conflict of interest and partial compromise regarding a portion of the suit property.
Law Points
- Order 23 Rule 1A CPC allows transposition of defendant as plaintiff where the original plaintiff withdraws or abandons the suit
- transposition may be allowed even on partial withdrawal or abandonment
- transposition requires identity of interest between original plaintiff and defendant
- a compromise entered behind a defendant's back is not binding on that defendant
- in a partition suit
- all parties are ordinarily plaintiffs and defendants
