Rajiv Sharma, J.�This petition is directed against the order dated 17.6.2013 passed in CMA No. 203/6 of 2013 and order dated 30.5.2013 passed in CMA No. 399/6 of 2012 by learned Civil Judge (Junior Division), Solan, H.P., in Civil Suit No. 20/1 of 04/96.
2. Key facts necessary for adjudication of this petition are that the plaintiffs instituted a suit for declaration to the effect that the judgment and decree passed by the learned Senior Sub Judge Solan in Case No. 265/1 of 1982 dated 20.12.1983, titled Sant Ram vs. The Collector Solan and others in respect of land comprised in Khasra Nos. 15, 220, 213, 17, 17min, 14min, and Khasra No. 119/4 in Mauja Bhumbal, Pargna Bharoli, Tehsil and District Solan, H.P. was wrong, illegal and in nullity, which was not binding upon the plaintiffs and the said decree did not confer any right, title and interest on the defendants and consequently, judgment and decree passed by learned Additional District Judge, Solan in Appeal No. 28-S/13 of 1984, titled State of H.P. vs. Sant Ram etc. on 30.8.1986 and subsequently, the order passed by this Court in CMPMO No. 247 of 1988 dated 31.3.1989 and mutation No. 173 dated 21.12.1989 were result of fraud on the Court, on the plaintiffs, misrepresentation of facts by the defendants, did not affect the rights, title and interest of the plaintiffs qua the suit land and the plaintiffs were owners in possession of the suit land along with defendants as per their respective shares recorded being Khewatdar and proprietors of village Bhumbal, Tehsil and District Solan, H.P. The revenue entries showing the defendants absolute owners in possession of the suit land, after passing the impugned judgment and decree were wrong, illegal and against facts. The plaintiffs also prayed for a decree for permanent prohibitory injunction in favour of the plaintiffs and against the defendants restraining them from claiming themselves to be exclusive owners of the suit land or any part thereof and also from cutting, removing, selling and causing any damage to the suit property and trees standing thereon in any manner whatsoever.
3. Proforma defendants No. 16, 21, 23 and 25 moved an application under Order 1 Rule 10 read with Section 151 of the Code of Civil Procedure for their transposition as plaintiffs. According to them, they had common and similar interest with the plaintiffs over the suit land. There was no clash between the interest of the plaintiffs and proforma defendants. The plaintiffs in connivance with defendants No. 1 to 12 were likely to withdraw the civil suit with the sole motive to prejudice the interest of the proforma defendants No. 16, 21, 23 and 25 over the suit land.
4. Reply was filed by the plaintiffs. According to them, the application was filed just to prolong the litigation. The plaintiffs and defendants No. 1 to 12 intended to compromise the matter in order to maintain peace and harmony in the family.
5. Defendants No. 1 to 12 also contested the application. According to them, proforma defendants suppressed the material facts from the Court. Initially they were arrayed as plaintiffs in the civil suit and subsequently, they were transposed as proforma defendants vide order dated 7.3.2002. They also reiterated that the plaintiffs intended to compromise the matter, but the proforma defendants wanted to cause hindrance to the compromise.
6. What emerges from the facts, enumerated hereinabove is that proforma defendants No. 16, 21, 23 and 25 have also interest in the suit land. Initially, they were arrayed as plaintiffs and subsequently they were transposed as proforma defendants vide order dated 7.3.2002. According to them, the plaintiffs colluded with defendants No. 1 to 12 and put their interest to peril.
7. Learned trial court rightly allowed the application vide order dated 30.5.2013 and permitted the proforma defendants to be transposed as plaintiffs in order to avoid prolixity of litigation between the parties. The proforma defendants have interest over the suit land and in case, the suit is permitted to be withdrawn, that would lead to further litigation between the parties.
8. Defendants No. 1 to 12 also filed an application under Section 151 of the Code of Civil Procedure for recalling all orders passed after 25.4.2013, especially order dated 30.5.2013. According to them, the civil suit was taken up by the learned Civil Judge (Jr.Divn.), Solan on 25.4.2013 and the same was adjourned to 15.6.2013 for consideration on application under Order 1 Rule 10 read with Section 151 of the Code of Civil Procedure.
9. According to Mr. Anup Rattan, learned Advocate, the matter was taken up initially on 23.5.2013 and order on the application under Order 1 Rule 10 read with Section 151 of the Code of Civil Procedure was passed on 30.5.2013. It is evident from the zimini order dated 25.4.2013 that the learned Civil Judge (Jr.Divn.) intended to adjourn the matter for 15.5.2013. Matter was ordered to be listed for 15.5.2013, wrongly mentioned as 15.6.2013 and thereafter for 23.5.2013. The matter was taken up by the learned Civil Judge (Jr.Divn.) on 23.5.2013 and the order was passed on the application under Order 1 Rule 10 read with Section 151 of the Code of Civil Procedure on 30.5.2013. Defendants No. 1 to 12 were duly represented on 15.5.2013, wrongly mentioned as 15.6.2013, 23.5.2013 and 30.5.2013. Defendants No. 1 to 12 filed the application under Section 151 of the Code of Civil Procedure only at the stage of arguments. Civil Suit was instituted in the year 1996. The Court has already noticed that the learned counsel for the defendants No. 1 to 12 appeared in all the proceedings, held on 15.5.2013, wrongly mentioned as 15.6.2013, 23.5.2013 and 30.5.2013. The application under Section 151of the Code of Civil Procedure was rightly rejected by the learned Civil Judge (Junior Division) on 17.6.2013 by a detailed order. He has made reference to the zimini orders and has also taken into consideration the fact that Ms. Neelam Gupta, learned Advocate, had filed power of attorney on behalf of defendants No.1 to 12 and was present in the court on 15.5.2013, 23.5.2013 and 30.5.2013.
10. Their Lordships of Privy Council in Bhupendera Narayan Sinha Bahadur vs. Rajeshwar Prasad Bhakat and others, AIR 1931 Privy Council 162 , have held that the course of adding proforma defendants as co-plaintiffs should always be adopted where it is necessary for a complete adjudication upon the questions involved in the suit and to avoid multiplicity of proceedings.
"........If there was a technical objection to this, the Court clearly had power at any stage of the proceedings to remedy the defeat under Order 1 Rule 10 Civil Procedure Code, by adding the proforma defendants as co-plaintiffs with the appellant. Such a course should, in their Lordships'' opinion always be adopted where it is necessary for a complete adjudication upon the questions involved in the suit and to avoid multiplicity........"
11. In
"10. Now, the very purpose of Rule 10(2) of Order I of the Code of Civil Procedure is to confer power on the Court to make transpositions to enable adjudications in situations where by reason of technicalities such as the one which has sprung up in the case before me, they cannot be made in favour of the person who originally commenced the suit. That is the correct way of understanding that statutory provision was pointed out by their Lordships of the Privy Council in Bhupendra Narayan Sinha v. Rajeswar Prosad Bhakat, 58 Ind App 228 : (AIR 1931 PC 162) , where at p. 238 of the report (Ind App): (at p. 165 of AIR), Sir George Lowndes observed-
"The proforma defendants asked that a decree should be passed in favour of the appellant. If there was a technical objection to this, the court clearly had the power at any stage of the proceedings to remedy the defect under Order I Rule 10 of the Civil Procedure Code by adding the proforma defendants as co-plaintiffs with the appellant. Such a course should, in their Lordships'' opinion, always be adopted where it is necessary for a complete adjudication upon the questions involved in the suit land to avoid multiplicity of proceedings."
12. In
"15. That brings me to the next point as to whether it was justified in transposing the intervenor defendant to the category of plaintiff. In this respect the law is more than clear. There is no bar in law to a defendant asking to be transposed to the category of the plaintiff provided the claim is founded on the same cause of action. In a suit for partition, whether it be plaintiff or defendant, the cause of action is the same. It is said that there was no objection to the impleading of the intervenor defendant Parmila Devi. In this connection, however, it has been pointed out that she claims to be a daughter of Mahendra, but that claim is denied by the other parties. That makes little difference. It can happen in any similar case of a pro forma defendant, who may claim to be entitled to a share,
It is well settled that if it is necessary for a proper adjudication of the real controversy in suit, the court may, acting under Order 1, Rule 10(2) of the Code, add or strike out parties or transpose them from one category to the other (see
13. In
"15. I find substance in the submission. It cannot be disputed that according to the will, S.G.P.C. is entitled to half share in the property. The will has been established by the Local Gurdwara Committee in the suit which was filed in 1970. A period of about 16 years has already elapsed, after the institution of the suit. In case S.G.P.C. is relegated to institute a fresh suit, it will take a long time for it to take possession of the property. It is well settled that the Court can suo motu transpose a defendant as plaintiff in order to avoid multiplicity of the proceedings.
16. I am fortified in the above view by the observations of their Lordships in Bhupendra Narayan Sinha Bahadur''s case (AIR 1931 PC 162) (supra) . In that case the plaintiff instituted a suit for declaration of his ownership and possession of the subsoil, and an injunction restraining the respondents from digging and removing the stones, earth or minerals, including the ochre, and claiming a large sum as damages. He was the eldest of four brothers, representing a zamindari which he alleged to be an impartible estate vested in him alone. He, however, joined his brothers as pro forma defendants to the suit and they supported his claim. The Subordinate Judge gave the appellant the declaration and injunction asked, in respect of the minerals, but holding that his sole title to the zamindari was not established, gave him only a quarter of the damages proved in respect of the removal of ochre. Both the parties appealed to the High Court which allowed the appeal of the respondent with the result that the plaintiff''s suit was dismissed. The plaintiffs went up in appeal to the Privy Council. A contention was raised there that the appellant having not established that the zamindari was impartible, he could not recover more than the quarter share of the damages. Their Lordships observed as follows:
"If the finding as to impartibility is correct, the family must apparently be joint, and it is perhaps not easy to see how any member can recover his individual share. But their Lordships think that the question of impartibility should not have been gone into in the present proceedings. All the members of the family were parties to the suit, and were at least jointly entitled to the whole. The pro forma defendants asked that a decree should be passed in favour of the appellant. If there was a technical objection to this, the Court clearly had power at any stage of the proceedings to remedy the defect under O. 1, R. 10, Civil P.C., by adding the pro forma defendants as co-plaintiffs with the appellant. Such a course should, in their Lordships'' opinion always be adopted where it is necessary for a complete adjudication upon the questions involved in the suit and to avoid multiplicity of proceedings."
These observations were followed din
14. Similar principles laid down by the Privy Council in Bhupendera Narayan Sinha Bahadur vs. Rajeshwar Prasad Bhakat and others, AIR 1931 Privy Council 162 have been reiterated by their Lordships of Hon''ble Supreme Court in
"4. Shri Sunil Gupta, learned senior counsel for the claimant has at the very outset assailed the order of the High Court whereby the application moved by the State of U.P. for transposing it as appellant in the appeals preferred by ADA was allowed. In the appeals preferred by the ADA against the judgment and award of the Addl. District Judge Smt. Kiran Tandon (widow of the original claimant Ravindra Kumar Tandon) was arrayed as respondent No. 1 and State of U.P. was arrayed as proforma respondent No. 2. The applications for transposition were supported by the affidavit of Tehsildar Sadar, Allahabad wherein it was averred that an objection had been raised on behalf of State of U.P. before the Addl. District Judge that the acquired land was State land and therefore the entire compensation amount should be awarded to State of U.P. The land had been acquired for construction of residential flats by ADA which is a State within the meaning of Article 12 of the Constitution and is therefore competent to raise any or all of the objection on behalf of the State Government. Therefore, in order to avoid any technical objection and in the interest of justice it was expedient that the State of U.P. may be transposed as appellant No. 2 in the appeal. The High Court held that as the ADA and State of U.P. were disputing the title of the claimant to receive the entire amount of compensation and State of U.P. having already been impleaded as proforma respondent in the appeal, the interest of justice required that it should be transposed as appellant in the appeal. Sub-rule 2 of Order I Rule 10 lays down that 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. It is well settled that the Court has power under Sub-rule (2) order I Rule 10 CPC to transfer a defendant to the category of plaintiffs and where the plaintiff agrees, such transposition 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. This principle was laid by the Privy Council in Bhupendra Narayan Sinha v. Rajeshwar Prosad AIR 1931 PC 162 and has been consistently followed by all the Courts. In fact the pleas raised by the ADA and State of U.P. were identical and in order to affectuate complete adjudication of the question involved in the appeal it was in the interest of justice to transpose State of U.P. as appellant No. 2 in the appeal. We are, therefore, of the opinion that no exception can be taken to the course adopted by the High Court in transposing the State of U.P. as appellant in both the appeals."
15. The addition of proforma defendants was necessary for full and final adjudication of the matter. There is no illegality or perversity in the order dated 17.6.2013 in CMA No. 203/6 of 2013 and order dated 30.5.2013 in CMA No. 399/6 of 2012 passed by learned Civil Judge (Junior Division), Solan, H.P., in Civil Suit No. 20/1 of 04/96.
16. Accordingly, in view of the observations and analysis, made hereinabove, there is no merit in the petition and the same is dismissed. Pending application(s), if any, also stands disposed of. No costs.
