Jyotsna Rewal Dua, J
1. An application moved by one Shri Subhash Chand Puri (original proforma defendant No. 7) under Order 1 Rule 10(2) read with Section 151 of
Code of Civil Procedure for transposing him as co-plaintiff has been allowed by the learned trial Court vide order dated 12.6.2019. Aggrieved
defendant No. 1 (Surinder Kumar) has preferred instant petition under Article 227 of Constitution of India.
2. From the record of civil suit, it becomes apparent that ‘the memo of parties’ of the present petition has not been drawn correctly. The
changes made before the learned trial Court in ‘the memo of parties’ have not been properly incorporated in the instant petition. Be that as it
may. Perusal of record and the impugned order reflect that the dispute raised in present petition only concerns Surinder Kumar (original defendant No.
1), Sham Sunder (original plaintiff) and Subhash Chand Puri (original defendant No.7). In fact, for deciding the application culminating in the impugned
order, the notice was confined by the learned trial Court only to these parties. Therefore, irrespective of the fact that ‘memo of parties’ has not
been drawn correctly and some of the respondents (herein) are not served, yet considering the narrow compass of controversy raised in the instant
petition coupled with the fact that original civil suit was filed almost 31 years ago, which has not progressed after 16.10.2019 due to requisitioning of its
record in the instant petition, the requirement of service of unserved respondents is dispensed with. Therefore, CMP No. 11211 of 2020, CMP(M) No.
724 of 2020 and CMP(M) No.725 of 2020 are not being considered in the interest of justice and stand disposed of accordingly. The parties affected
and interested in the order impugned herein, are represented by their learned Counsel. Considering all these aspects, the matter is heard today with the
consent of learned Counsel for the parties affected by the impugned order.
3(i) A civil suit bearing No. 180/1991 was filed by S/Shri Sham Sunder and Jaram Singh in the learned trial Court seeking possession of land
comprised in Khata No. 14 min, Khatauni No. 21 min, Khasra No. 747/1, measuring 0-00-44(2 marlas) out of Khasra No. 747 measuring 0-01-50 HM,
situated in Tika and Mauza Jassur, Tehsil Nurpur, District Kangra. In the civil suit, petitioner-Shri Subhash Chand Puri was arrayed as proforma
defendant No. 7. Defendants No. 3 to 7 admitted the claim of plaintiffs. Defendant No. 1 prayed for dismissal of suit. The suit was decreed ex-parte
in favour of plaintiffs vide judgment and decree dated 25.10.1997. Defendant No. 1 (petitioner herein) was to demolish the shed constructed by him
over the foundations laid by plaintiff No. 1. Plaintiff Sham Sunder thereafter filed an execution petition No. 8/2006 for possession of half share of suit
land. Subsequently defendant No. 1 moved an application under Order 9 Rule 13 CPC for setting aside ex-parte decree dated 25.10.1997. The
application was dismissed by the learned trial Court on 24.1.2009 for want of prosecution.
3(ii) The judgment and decree dated 25.10.1997 was set aside by learned District Judge on 4.10.2012 on the ground that it was passed against dead
persons. Accordingly, the trial Court was directed to decide the matter afresh.
3(ii) Original proforma defendant No. 7 moved an application under Order 1 Rule 10 read with Section 151 of CPC for transposing himself as co-
plaintiff. The basis for moving this application, as averred in the application, was that he had bought half portion of the suit land measuring 0-00-21 HM
having two shops and a staircase for sale consideration of Rs.35000/- qua Khasra No. 747/1 measuring 0-00-44 HM including half portion which
allegedly was in illegal possession of defendant No. 1(petitioner herein), vide sale deed No. 747 dated 29.4.2005. It was averred in the application that
having purchased the aforesaid suit land the applicant had become owner of the suit land and, therefore, has common interest with that of plaintiff
Sham Sunder. On this basis, he prayed for his transposition as co-plaintiff for taking the possession of the suit land from defendant No. 1. This prayer
was opposed by defendant No. 1 by taking various objections which inter-alia pertained to locus-standi of proforma defendant No. 7 in maintaining the
application. On merits also, purchase of suit property by proforma defendant No. 7 was denied. Learned trial Court vide order dated 12.6.2019
allowed the application and transposed original proforma defendant No. 7 as co-plaintiff. Aggrieved defendant No. 1 has preferred instant petition.
4. I have heard learned counsel for the petitioner (original defendant No.1), respondent No. 1 (original Plaintiff) as well as respondent No. 8(original
proforma defendant No. 7) and gone through the record.
It is not in dispute that Shri Subhash Chand Puri was originally arrayed as proforma defendant No. 7 in the civil suit. He moved the application for his
transposition as co-plaintiff on the ground of having purchased the suit property as described above. It is the plaintiff who has the dominus litis. It is for
the plaintiff to choose his opponents as well as his co-plaintiffs. The record of civil suit shows that the plaintiff did not oppose the transposition of
proforma defendant No. 7 as co-plaintiff alongwith him. It was a civil suit for possession. When the plaintiff did not have any objection to the prayer
made by proforma defendant No. 7 for his transposition as co-plaintiff, then, in the facts and circumstances of the case and considering nature of civil
suit, the transposition of Subhash Chand Puri as co-plaintiff was justified. More particularly when objections of defendant No. 1/petitioner against
transposition of proforma defendant No. 7 as co-plaintiff primarily pertained to merits of main matter inasmuch as defendant No.1 has alleged that
lease deed in favour of original plaintiffs had expired. This objection has been countered with the submission that lease has been further renewed and
that proforma defendant has purchased the suit property described above.
Reference in this regard can be made to AIR 2019 Supreme Court 3577, titled Gurmit Singh Bhatia v. Kiran Kant Robinson and other, swherein
Hon’ble Apex Court followed an earlier judgment in case of Kasturi vs. Iyyamperumal (2005) 6 SCC 733 where it was observed that order I Rule
10 CPC to add a party in the suit cannot be invoked unless the party proposed to be added has direct and legal interest in the controversy involved in
the suit. Two tests were laid down for determining the question as to who is necessary party viz:-(1) there must be a right to some relief against such
party in respect of controversy raised in the proceedings; (2) no effective decree can be passed in absence of such party. It was further observed that
a party claiming an independent title and possession adverse to the title of the vendor and not on the basis of the contract, in a civil suit for
performance, is not a proper party. Addition/impleadment of such party shall enlarge the scope of civil suit for specific performance to suit for title and
possession, which is impermissible. Relevant extracts from Gurmit Singh Bhatia’s case supra are reproduced hereinunder:
“5.2 ……... That thereafter, after observing and holding as above, this Court further observed that in view of the principle that the
plaintiff who has filed a suit for specific performance of the contract to sell is the dominus litis, he cannot be forced to add parties against
whom, he does not want to fight unless it is a compulsion of the rule of law. In the aforesaid decision in the case of Kasturi (supra), it was
contended on behalf of the third parties that they are in possession of the suit property on the basis of their independent title to the same
and as the plaintiff had also claimed the relief of possession in the plaint and the issue with regard to possession is common to the parties
including the third parties, and therefore, the same can be settled in the suit itself. It was further submitted on behalf of the third parties that
to avoid the multiplicity of the suits, it would be appropriate to join them as party defendants. This Court did not accept the aforesaid
submission by observing that merely in order to find out who is in possession of the contracted property, a third party or a stranger to the
contract cannot be added in a suit for specific performance of the contract to sell because they are not necessary parties as there was no
semblance of right to some relief against the party to the contract. It is further observed and held that in a suit for specific performance of
the contract to sell the lis between the vendor and the persons in whose favour agreement to sell is executed shall only be gone into and it is
also not open to the Court to decide whether any other parties have acquired any title and possession of the contracted property. It is
further observed and held by this Court in the aforesaid decision that if the plaintiff who has filed a suit for specific performance of the
contract to sell, even after receiving the notice of claim of title and possession by other persons (not parties to the suit and even not parties
to the agreement to sell for which a decree for specific performance is sought) does not want to join them in the pending suit, it is always
done at the risk of the plaintiff because he cannot be forced to join the third parties as partydefendants in such suit. The aforesaid
observations are made by this Court considering the principle that plaintiff is the dominus litis and cannot be forced to add parties against
whom he does not want to fight unless there is a compulsion of the rule of law. Therefore, considering the decision of this Court in the case
of Kasturi (supra), the appellant cannot be impleaded as a defendant in the suit filed by the original plaintiffs for specific performance of
the contract between the original plaintiffs and original defendant no.1 and in a suit for specific performance of the contract to which the
appellant is not a party and that too against the wish of the plaintiffs. The plaintiffs cannot be forced to add party against whom he does not
want to fight. If he does so, in that case, it will be at the risk of the plaintiffs.
6. Now so far as the reliance placed upon the decision of this Court in the case of Robin Ramjibhai Patel (AIR 2016 SC (Supp.) 733)
(supra) and the decision of the Bombay High Court in the case of Shri Swastik Developers (supra), relied upon by the learned Senior
Advocate for the appellant is concerned, the aforesaid decisions shall not be applicable to the facts of the case on hand as in both the
aforesaid cases, it was the plaintiff who submitted an application to implead the third parties/subsequent purchasers who claimed title under
the vendor of the plaintiff. Position will be different when the plaintiff submits an application to implead the subsequent purchaser as a
party and when the plaintiff opposes such an application for impleadment. This is the distinguishing feature in the aforesaid two decisions
and in the decision of this Court in the case of Kasturi(supra).â€
It shall also be apposite to refer to decision of Hon’ble Apex Court in R. Dhanasundari vs. A.N. Umakanth & ors., 2019(4) Scale 161, wherein it
was observed that 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 proceeding should be avoided. Extracts from the
judgment are as under:-
“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 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 (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.â€
In AIR 2004 SC 2006, titled Kiran Tandon Vs. Allahabad Development Authority, Hon’ble Apex Court reiterated the principle laid down by the
Privy Council in Bhupendra Narayan Sinha Vs. Rajeshwar Prasad AIR 1931 PC 16 2that for effective and complete adjudication and settling all the
questions involved in the civil suit, the Court has power under sub-rule (2) Order 1, Rule 10 C.P.C. to transfer a defendant to the category of plaintiffs
and where the plaintiff agrees, such transportation should be readily made. This power could be exercised by the High Court in appeal, if necessary,
suo-motu to do complete justice between the parties.
Instant was a civil suit for possession. Claim of proforma defendant of having purchased parts of suit land during pendency of litigation is not disputed
by the plaintiffs. On this basis, prayer of proforma defendant to join as co-plaintiff is not opposed by the original plaintiff-the lessee. Due to subsequent
events, proforma defendant No. 7 had started sailing in the plaintiffs’ boat and had acquired interests common to the plaintiff. It was then a logical
corollary to transpose the proforma defendant as a co-plaintiff. Refusal to do so would cause him prejudice. By such transposition, nature and scope
of civil suit was not being changed or enlarged. Claim of proforma defendant was not inconsistent with that of original plaintiff, who had dominus litis.
The issues relating to lease deed pertain to merits of main case and can be adjudicated there. There is thus no error in the impugned order passed by
the learned trial Court transposing proforma defendant No. 7 as co-plaintiff. Present petition, therefore, is dismissed being devoid of merit. Pending
application(s), if any, shall also stand disposed of.
Parties through their learned counsel are directed to remain present before the learned trial Court on 23.12.2020.
Registry is directed to return the record to the trial Court forthwith.
