Kailash Chand Agrawal vs Rajendra Prasad Singla
2022 Latest Caselaw 4474 MP

                IN THE HIGH COURT OF MADHYA PRADESH
                            AT JABALPUR
                               BEFORE
                   HON'BLE SMT. JUSTICE ANJULI PALO
                     ON THE 30 th OF MARCH, 2022

                       FIRST APPEAL No. 1133 of 2012

  Between:-
  KAILASH CHAND AGRAWAL
  S/O LATE SHRI GULAB CHAND AGARWAL,
  AGED ABOUT 68 YEARS,
  188, JINSI PULL BOGDA JAHANGIRABAD,
  BHOPAL (MADHYA PRADESH)
                                                             .....APPELLANT
  (BY SHRI SATISH AGRAWAL, ADVOCATE)

  AND

   RAJENDRA PRASAD SINGLA
   S/O LATE SHRI SHYAMLAL SINGLA,
   AGED ABOUT 53 YEARS,
   H.NO. 235/I, PULWADO CARLE
1. VILLA PROPERTIES BENOLIM
   MAGDAON ROAD, MADGAON
   [(MADHYAPRADESH)
   [THROUGH LRs]

   SUNIL KUMAR AGRAWAL
   S/O SHRI KAILASHCHAND AGRAWAL
   OCCUPATION: PARTNER OF THE
   ERSTWHILE M/S G.S. OIL MILLS R/O 188,
2.
   JINSI PULL BOGDA,
   JAHANGIRABAD,
   BHOPAL (MADHYA PRADESH)

   PAWAN KUMAR AGRAWAL
   S/O SHRI KAILASHCHAND AGRAWAL
3.
   R/O E-1/50, ARERA COLONY,
   BHOPAL (MADHYA PRADESH)
                                                     .....RESPONDENTS
  (RESPONDENT NO.1 BY SHRI DEEPESH JOSHI AND RESPONDENT NO.3 SATISH
  KUMAR DIXIT, ADVOCATE )

      This appeal coming on for consideration of interlocutory
application this day, the court passed the following:

                                 ORDER

Heard on I.A. No.4461/2020, an application under Order 22 Rule 3 of the Code of Civil Procedure for substitution of legal representatives of Kailash Chand Agrawal as well as I.A. No.4460/2020, an application to transpose the defendant No.2 in his personal capacity as appellant.

2. It is contended that the sole appellant - Kailash Chand Agrawal died on 12.02.2020. The death certificate dated 27.02.2020 has been filed as Annexure -1. The appellant - Kailash Chand Agrawal has executed Will dated 05.05.2018 which has been registered on 09.05.2018 and annexed with the application as Annexure 2. By the aforesaid Will late Kailash Chand Agrawal has bequethed all his movable and immovable assets in favour of his elder son Sunil Agrawal (original defendant No.2 in the suit and respondent No.2 in the appeal in the capacity of partner of the erstwhile firm M/s G S Oil Mills). Sunil Agrawal has been given responsibility to take care of his mother and his mother - Smt. Manorama Agrawal has been given right to reside in the property which is subject matter of the appeal.

3. It is further contended that second son of late Kailash Chand Agrawal has not been given anything in the aforesaid Will as he had separated from his father about thirteen years ago from the date of execution of the aforesaid Will as mentioned in the written statement. He is original defendant No.3 and respondent No.3 in the appeal.

4. On the other hand, learned counsel appearing for LRs of respondent No.1 has vehemently contended that the respondents 2 and 3 have not challenged the judgment and decree passed by the trial Court. The aforesaid applications filed by the respondents are grossly misconceived. Appellant late Kailash Chand Agrawal was partner in the partnership firm and after his death, the partnership firm automatically stood dissolved and as he filed the instant appeal in his personal capacity, application under Order 22 Rule 4 cannot be entertained. As other legal representatives are also still alive, substitution for one legal heir cannot be permitted. The appeal preferred by the appellant stands automatically abated.

5. Heard learned counsel for the parties at length and perused the records.

6. At this juncture, it is apposite to refer to the decisions in the field. In the case of R. Dhanasundari v. A.N. Umakanth and Others, (2020) 14 SCC 1, it has been held 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 the controversy in the suit. In the aforesaid case, it has been held in paragraphs 8 to 11, it has been held as follows:

"8. The law of procedure relating to the parties to a civil suit is essentially contained in Order 1 of the Code of Civil Procedure, dealing with various aspects concerning joinder, non-joinder and misjoinder of parties. Rule 10 of Order 1 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 Order 1 Rule 10 CPC that reads as under:

"10. (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 appear 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 ought 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."

9. On the other hand, the law of procedure in relation to withdrawal and adjustment of suits is contained in Order 23 of the Code of Civil Procedure. As per Rule 1 thereof, a plaintiff may seek permission for withdrawal of suit or abandonment of a part of claim. Rule 1-A thereof 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 23 CPC reads as under:

"23. (1-A) When transposition of defendants as plaintiffs 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."

10. It remains trite that the object of Order 1 Rule 10 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 Anil Kumar Singh v. Shivnath Mishra [Anil Kumar Singh v. Shivnath Mishra, (1995) 3 SCC 147] in the following : (SCC p. 150, para 7)

"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."

11. 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 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 23 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."

[See also : Anand Kumar Arya v. Bishwanath Poddar, 2018 SCC OnLine Jhar 527; Urmila Pasari and others v. Exide India Ltd., 2020 SCC OnLine SC 1321; Anil Kumar Singh v. Shivnath Mishra, (1995) 3 SCC 147 and Mathura Bai and Another v. Daryanamal and Others, 1995 MPLJ 427]

7. In the case at hand, the sole appellant - Kailash Chand Agrawal has executed Will dated 05.05.2018 which is a registered docment. By the aforesaid Will late Kailash Chand Agrawal has bequethed all his movable and immovable assets in favour of his elder son Sunil Agrawal who is original defendant No.2 in the suit and respondent No.2 herein in the appeal in the capacity of partner of the erstwhile firm M/s G S Oil Mills). Sunil Agrawal has been given responsibility to take care of his mother and his mother - Smt. Manorama Agrawal has been given right to reside in the property which is subject matter of the appeal. In view of the judgment and decree passed by the trial Court, the contention raised Mr. Deepesh Joshi that the appeal preferred by the appellant stands automatically abated, is not acceptable. The applicants are son and wife of the deceased who have been bequeathed the moveable and immovable assets and in the opinion of this Court, they are necessary for effective and complete adjudication of the present appeal. The applications have been filed within time supported by affidavit.

8. In view of the above, and in the light of the decisions in the cases of R. Dhanasundari (supra), Anand Kumar Arya (supra), Urmila Pasari (supra), Anil Kumar Singh (supra) and Mathura Bai (supra) and Another v. Daryanamal and Others, 1995 MPLJ 427, I.A. No.4461/2020, an application under Order 22 Rule 3 of the Code of Civil Procedure and I.A. No.4460/2020, an application to transpose the defendant No.2 in his personal capacity as appellant, are hereby allowed. Let necessary amendment be carried out within two weeks.

9. Also heard on I.A. No.8501/2021, an application for transposition of the respondent No.3- Pawan Kumar Agrawal as the appellant.

10. This application has been filed on the ground that the sole appellant Kailash Chand Agrawal expired on 12.02.2020 and the applicant ( who is respondent No.3 herein) is his son hence, he be permitted to transpose at appellant.

11. As per the registered Will executed by the appellant dated 05.05.2018, Pawan Kumar Agrawal has not been bequeathed anything. As per the written statement, he has separated from his father (the sole dead appellant) about thirteen years back. His transposition as appellant would lead to complication in the matter. Hence, I.A. No.8501/2021 is hereby dismissed.

12. List the case after four weeks for consideration of I.A. No.4462/2020. Meanwhile, it would be open to other side to file reply to this application.

                                                      (Smt.     Anjuli   Palo)
                                                              Judge
   ks


Digitally signed by
KOUSHALENDRA SHARAN
SHUKLA
Date: 2022.03.31 22:20:51 -07'00'