Mahesh Chander Dewan And Anr. vs Kanti Chander Dewan And Ors.
1994 Latest Caselaw 182 Del

JUDGMENT

R.C. Lahoti, J.

(1) Two out of three plaintiffs have come up in revision feeling aggrieved by the order dated 12.5.1992 of the trial court directing their application under Order 1 Rule 10 Civil Procedure Code proposing transposition of plaintiff No,3 as a defendant to be dismissed.

(2) The three plaintiffs are real brothers. It appears that they had filed a suit for issuance of an injunction patenting their possession over the suit property. During the pendency of the suit the defendant No.1, none-else then.the father of the plaintiffs', expired. The plaintiffs thereupon moved an application under Order 22 Rule 4 Civil Procedure Code proposing to bring on record their sister i.e. a daughter of the deceased,the other L.R s.i.e. the sons being already on record. At this point of time the plaintiff No.3 made a statement dated 21.4.1992 wherein though he agreed to stand by the case set out by the three plaintiffs jointly in the plaint yet he proceeded to state:- "I have made the above statement without prejudice of my rights and title of the assets devolved upon me by virtue of Will dated 29.10.1990 executed by Late Shri Leila Ram Dewan which is a registered will. The said will is pending adjudication in the High Court of Delhi in Probate case No.48/ 91."

(3) It appears that the plaintiff Nos.l & 2 do not agree with the will set up by the plaintiff No.3. Apprehending conflict of interest between the plaintiffs interse, the plaintiff nos.1 &. 2 moved an application for transposing the plaintiff no. 3 as a defendant. In the meantime the plaintiff No.3 had engaged a counsel of his own other than the one initially engaged by the three plaintiffs. The trial court has rejected the application for transposition forming an opinion that the will dated 29.10.1990 was not a subject matter of dispute before it and so change in the array of the parties was not warranted.

(4) In the opinion of this court the approach adopted by the trial court cannot besustained. Indeed the plaintiffs Nos. 1 & 2 the petitioners did not appear at the time of hearing of this revision. The counsel for the plaintiff No.3 respondent alone appeared at the time of hearing and was heard. The learned counsel stated that the will was not going to be adjudicated upon in the present suit and hence the trial court was justified in refusing the transposition. In the alternative he submitted that the plaintiff No.3 was interested in prosecuting the suit and he had no objection if the plaintiffs Nos. 1 & 2 were prepared to be transposed or were ordered to be transposed as defendants. This court asked the learned counsel a pertinent question Whether the plaintiff No.3 inspite of his having engaged a separate counsel of his own, was prepared to leave the conduct of the case in the hands of the other two plaintiffs and the counsel who was jointly instructed by all the three plaintiffs and was conducting the case till now? The learned counsel answered that plaintiff No.3 would not agree to this.

(5) Law as to the transposition of the parties is well settled. It will be useful to notice the scheme of order 1 CPC. Under Rule l all persons may be joined in one suit as plaintiffs in the given circumstances - cause of action being common or common questions of law of fact arising, to be short. Rule 2 empowers the court to order separate trials or making such other order as it may deem expedient where it may appear to the court that joinder of plaintiffs may embraces or delay the trial of the suit, of course after putting the plaintiffs to their election. Rule 10 confers vide powers on the court in the matter of striking out, adding or transposing the parties at any stage of the proceedings either upon or without the application of either party.

(6) Smt. Saila Bala Dassi Vs.Smt. Nirmala Sundari Dass and another 1958 Sc 394 is an authority for the proposition that action for transposition of the parties can be taken by the court even suo-moto cither under Order 1 Rule 10 Civil Procedure Code or in its inherent jurisdiction.

(7) In Sands Vs. Wildsmith 1893 (1) Qb 771 their Lordships have recognised the power of the Judge to make an order to strike out one of the plaintiffs or to direct that there shall be separate trials if the Judge thinks that the claims of the different plaintiffs cannot properly be dealt with together.

(8) In Kishori Lal Vs. Smt. Mahantoo &: Ors. 2nd 1978 (7) H.P., 54 a suit was filed jointly by the plaintiffs more than one. As to the ownership of the suit property difference in the interest of the plaintiffs inter se became apparent during pendency of suit. R.S. Pathak, C.j., (as his Lordship then was) held that though all the plaintiffs had originally joined together in filing the suit, some of the plaintiffs should be transposed from the array of plaintiffs to the array of defendants as they could not continue as plaintiffs and the reason that multiplicity of the proceedings should be avoided, was a good reason for permitting the transposition.

(9) In Vanjiappa Goundan Vs. N.P.V.L.R. Annamalai Chettiar and Others Air 1940 Madras 69 purchaser and seller of the suit property had joined as coplaintiffs. Later the seller/plaintiff set up a claim to the amount in suit adversely to the purchaser/plaintiff. Patanjali Sastri, J. (as his Lordship then was) held "It will be highly expedient, if not necessary, to strike out the seller's name as plaintiff No.2.But as he is clearly a person whose presence before the court is necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit, the proper order would be to direct the seller to be transposed as a defendant in the suit".

(10) In the case at hand though the will set up by the plaintiff No.3 is not to be adjudicated upon nevertheless it is clear that clash of interest as regards the suit property between the plaintiff No.1, 2 and plaintiff No.3 has come on the floor. Else there was no occasion in the present suit for the plaintiff No.3 to have made a statement about the will which was not acceptable to the other plaintiffs. He has also changed his counsel. The trial of the suit is likely to be embrrased. Two parties or two counsel, for the matter of that cannot conduct the suit unless they agree to act in unison handing over command into a single hand which the plaintiff No.3 is not prepared to do. The present one is a fit case where the trial court ought to have exercised its jurisdiction to transpose the parties or to have considered ordering separating of the trial by filing of separate plaints by the two sets of the plaintiffs.

(11) The revision is allowed. The impugned order is set aside. The trial court is directed to hear afresh the application for transposition of the parties and decide the same in accordance with law and consistently with the observations made hereinabove. No order as to costs.