In Re : Nirmalendu Chakraborty

Mitra, J.@mdashThis revisional application is against the Order No. 243 dated January 15, 1986 passed by the learned Munsif, Additional Court at Sealdah in Title Suit No. 1% of 1983 allowing the defendant No. 2''s application for transposing him to the category of plaintiff. The opposite party No. 1 as plaintiff instituted the aforesaid title suit against the petitioner and the opposite party No. 2 for recovery of possession of the suit property alleging, inter alia, that she had purchased the said plot with her own money and constructed a house on a portion thereof but the petitioner encroached upon another portion of the said plot and constructed structure thereon and that the subsequent sale of the suit plot by the plaintiff opposite party No. 1 to the opposite party No. 2 who was subsequently added as defendant No. 2, was a benami transaction. The petitioner, however, in the written statement denied and disputed the allegations as made in the plaint During trial, the opposite party No. 2 was examined and cross-examined. Thereafter, the opposite party No. 2 filed an application for transposing him as the plaintiff No. 2, inter alia, on the allegation that since he had supported the case of the plaintiff-opposite party No. 1 and both were sailing in the same boat and had got common interests in the suit he should be transposed as the plaintiff No. 2. The said prayer of the opposite party No. 2, was not opposed by the plaintiff-opposite party No. 1 but the petitioner made an objection against the same, inter alia, on the allegation that the opposite party No. 2 had locus stand to make such an application when he had virtually admitted the pleadings of the opposite party N. 1 as made in the plaint. The learned Munsif, however, by the impugned order allowed the said application of the opposite party No. 2, inter alia, on the finding that since the plaintiff-opposite party No. 1 was agreeable and ready to accept the opposite party No. 2 as co-plaintiff, he was unable to accept the objection raised by the petitioner. Against the said order the petitioner has moved the present revisional application in this Court. Mr. Saktinath Mukherjee, the learned advocate appearing on behalf of the petitioner has challenged the impugned order on various gorounds includng the question of limitation and submitted that since the opposite parties No. 1 and 2 are not sailing in the same boat and since the opposite party No. 2 had virtually admitted the pleadings of the opposite party No. 1 as made in the plaint, there was no question of transposing the opposite party No. 2 to the category of the plaintiff as he and the opposite party No. 1 had no common interest in the suit.

2. Mr. Ghose, learned Advocate appearing on behalf of the caveator/opposite parties, however, has supported the impugned order on the ground that it was the plaintiff''s suit and since the plaintiff had no objection in the matter of transposing the opposite party No. 2 to the category of co-plaintiff the petitioner who was a defendant in the suit could not raise objection against such transposition. The question of limitation as raised by Mr. Mukherjee, according to Mr. Ghose, was a matter to be decided at the time of trial.

3. Order I Rule 10(1) of the CPC apart from giving power to the court to strike out or add parties, also empowers the court to transpose parties and transposition should be made or allowed when it is necessary for the complete adjudication on the question involved in the suit and also to avoid multiplicity of proceedings. (Reference, may be made to the case of AIR 1931 162 (Privy Council) ). Such power should be exercised wherever the ends of subsequential justice requires it and a transfer of parties from one side to the other should always be granted where the refusal to do would prejudicially affect the applicant by driving him to another suit. Further, it is only when the court is in doubt as to which of the parties the relief can be afforded, the court can order transposition. As to the transposition to the category of plaintiff, when a defendant''s claim is in consistent with that of the original plaintiff, he cannot be transposed to the category of plaintiff. He must have an identity of claim with the plaintiff and he must be deemed to have adopted the statements made in the plaint which are essential to support the cause of action stated in the plaint. A transposition of a defendant as a plaintiff, however, should not be granted if it results in changing the character of the suit. Reference may be made to the Division Bench decision of this Court in the case of Jagabandhu Saha Vs. Haris Chandra Sil and Others, . This power to transpose even can be made suo motu, and also under the inherent power of the Court but cannot be exercised without motive to the parties. Moreover, when the original plaintiff does not oppose transposition of a defendant to plaintiff''s category, it should be allowed. The provisions of this rule are applicable even to an application for leave to sue as pauper and the Court has power to transpose a defendant as an applicant for leave to sue as pauper and such an application cannot be rejected on the ground that the claim made by the original applicant is personal to himself. (Reference may be made to the case of Vijay Pratap Singh Vs. Dukh Haran Nath Singh and Another, ).

4. Under Order I Rule 10(2) and Section 107 of the CPC read with Section 151 of the said Code, the Appellate Court has also the power to transpose a respondent as an appellant or an appellant as a respondent in order to further the ends of justice (Reference may be made to the case of Saila Bala Dassi Vs. Sm. Nirmala Sundari Dassi and Another, ). But Appeal Court should not order such transposition first, when there is likelihood of the scope of the appeal being opened and when new grounds not common to the appellants already on record may have to be determined. Even the High Court in appeal can transpose a defendant as plaintiff, if necessary suo moto, to do complete justice between the parties. (Reference may be make to the case of Messrs. Importers & Manufactures Ltd. v. Pheroze Framroze reported in AIR 1958 SC 73).

5. No question of limitation is involved when a party is transposed from the array of defendants to that of the plaintiffs and the date of such transposition is not material ordinarily. Section 21(1) of the Limitation Act, 1963 says inter alia that where after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him, he deemed to have been instituted when he was so made a party but in sub-section (2) of the said section 21 of the Act it is clearly stated that nothing in the said Sub-section (1) shall apply to a case where a party is added or substituted owning to assignment or devolution of any interest during the pendency of a suit or where a plaintiff is made a defendant or a defendant is made a plaintiff. This is because of the fact that where a defendant or a pro-forma defendant in a suit is transposed to the category of plaintiff, the added plaintiff is not a new plaintiff. Reference may be made to the case of Nagendra Bala Debya v. Tarapada Acharjee & Anr. reported in 8 Calcutta Law Journal 286 which decision was also followed in the subsequent Division Bench. Judgment of this court in the case of Hossainara Begam v. Rahimannessa Begam, reported in ILR 38 Cal 342 where The Hon''ble Mr. Justice Sir Ashutosh Mookerjee and the Hon''ble Mr. Justice Sharfuddin had held, inter alia, following Nagendra Bala Debya''s case (supra) that the transfer of a party from pro-forma defendant to plaintiff was not an addition of a new party within the meaning of Section 22 of the Limitation Act. Both the aforesaid Division Bench decisions were followed in a subsequent Division Bench judgment of this Court in the case of Dwarka Nath Das v. Monmohan Tarafdar, reported in XIX Calcutta Weekly Notes 1269 where Holmwood and Mullick JJ., relying upon the aforesaid two decisions and also upon the decision in the case of Narsinh v. Vanman Venkatrao reported in ILR 34 Bom 91 held, inter alia, that the rule, that a party is transferred from the side of the Defendants to that of the plaintiffs is not a new party to whom provisions of Section 22 of the Limitation Act apply, is an absolute rule. Although all the aforesaid decisions dealt with Section 22 of the Old Limitation Act, but that Section is pair materia with Section 21 of the Limitation Act, 1963 with the only difference that a proviso has been added to sub-section (1) of Section 21(1) of the present Limitation Act, which, however, has not changed and/or affected the aforesaid position in law in any way so far as transposition of a party is concerned.

6. Referring to the aforesaid decisions in the case of Hossainara Begam''s case (supra) and Dwaraka Nath Das''s case (supra), Mitter and Sharpe, JJ., in the case of Moniruddin Ahmed and Others Vs. Sarat Chandra Roy Choudhury and Others , however, held inter alia explaining the scope of the said decisions that Section 22(2) of the Limitation Act, 1908 would not be applicable to a case where a person was transposed from the category of Defendants to that of the plaintiffs where either such transposed plaintiff had to sustain his claim to the subject matter of the suit as defined in the plaint a originally filed on a different cause of action not placed in the original plaint, or his claim although it might be supported on the cause of action as placed in the original plaint, was in respect of a different subject matter which was to be brought in by way of addition after he was transposed and in such cases for the purpose of limitation the suit so far as the transposed plaintiff was concerned, would be deemed to be instituted on the date when he made the application for transposition. In other words, the Court, in passing an order of transposition, is to see that the order does not take away a valuable right that might have accrued to the other-side either by way of limitation or otherwise.

7. In the present case the plaintiff does not object to the defendant''s application for transposing him to the category of co-plaintiff and it has already been held hereinbefore that when the plaintiff agrees, such transposition should be readily made. It also does not appear from the records that the plaintiff and the defendant no. 2 have adverse interests in respect of the suit property neither the cause of action in the suit has been changed as the amendment of plaint by which the plaintiff had claimed the subsequent sale of the suit property to the defendant No. 2 as benami transaction was allowed and under the law the amendment relates back to the date of institution of the suit its and the application for transposition was made after the amendment of plaint was allowed. Furthermore the defendant No. 2 in his evidence also supported and/or admitted the claim of the plaintiff. Therefore in my view the objection of the defendant No. 1 to the application for transposition, was rightly rejected by the trial court and I find no reason to interfere with the impugned order. The revisional application is therefore disposed of. I make it clear that I make no observation regarding the merits of the case and/or right, title or interest of the parties to the suit in respect of the suit property and I keep all questions open to be decided at the time of trial including the question of limitation. There will be no order as to costs. Let this order be communicated to the trial court forthwith.