CRP 340/2008 BEFORE HON’BLE MR. JUSTICE H. BARUAH In these revision petitions , the petitioner has put under challenge the followi ng orders arising out of Title Suit No. 306 of 2006. (1) Order dated 26-6-2008 passed in Misc (j) Case No. 100 of 2008 and 101 of 2008 ; (2) Order dated 19-7-2008 passed in Misc (j) Case No. 167 of 2008 and 101 of 2008 ; (3) Order dated 26-6-2008 passed in Misc (j) Case No. 339 of 2007 and 101 of 2008 ; and (4) Order dated 19-7-2008 passed in Misc (j) Case No. 166 of 2008 and 101 of 2008 ; It would be appropriate/apposite to state that all the impugned order were passe d by learned Munsiff No. 2, Dhubri. For convenience, impugned order dated 26-6-2 008 passed in Misc. (J) Case No. 339/2007 would be dealt with first, secondly the order dated 26/6/2008 passed in Misc. (j) Case No. 100 of 2008 and Misc. (j) No. 101 of 2008 and third ly the order dated 19-7-2008 passed in Misc. (j) Case No. 166 of 2008 and 167 of 2008. 2. By impugned order dated 26-06-2008 passed in Misc.(J) Case No. 3 39 of 2007, the application for amendment as proposed therein was allowed while by impugned order dated 26-6-2008 passed in Misc.(J) Case No. 100 of 2008 and 1 01 of 2008 applications for striking out adding of parties made under Order I Ru le 10(2) of the CPC were allowed. By impugned order dated 19-7-2008 passed in Mi sc. (j) Case Nos. 166 of 2008 and 167 of 2008, the review application made under Section 114 of Code were rejected. Since all the impugned orders issued out of Title Suit No. 306 of 2006, both the revision petitions are taken up together fo r disposal. 3. The respondents herein as plaintiffs instituted a Title Suit No. 306 of 2006 earlier registered as T.S No. 56 of 2005 for a decree for declarati on and permanent injunction against the petitioner and two others for a declarat ion that the Gaon Panchayat office of Moterjhar Panchayat shall continue to rema in at Moterjhar village and construction of Gaon Panchayat Office of Moterjhar s hall not be made at Morakura village or in any other place other than Moterjhar and also for a decree of permanent injunction against the petitioners and two ot hers from releasing the fund for earth filing and constructing building at Murak ura or any other place. The petitioner was elected President of the Moterjhar Go an Panchayat from 2001 to 2007 while the respondents were members of Gaon Pancha yat, Anchalic Panchayat and Jilla Panchayat for the term 2001 - 2007. There was a move for shifting the office of the Gaon Panchayat, Moterjhar to Morakura and to resist such shifting the opposite parties instituted the suit as indicated ab ove for a decree for declaration and injunction. While the suit was subjudice, t he opposite parties filed a petition on 1-12-2007 under Order VI Rule 17 of the CPC for amendment of the plaint in view of deletion of the Panchayat bodies. The aforesaid petition was registered as Misc. (j) Case No. 339 of 2007. The petiti oner objected to such amendment. However, the learned Munsiff No. 2, Dhubri vide order dated 26-6-2008 allowed such amendment with cost. On 8-5-2008 opposite pa rty No. 1 Smt. Kalayani Bhadra preferred a petition under Order 1 Rule 10(2) of the CPC praying to strike out her name as plaintiff. The petition was registered as Misc.(J) Case No. 100 of 2008. Similarly on the same date another applicatio n under Order I Rule 10(2) of the CPC was also filed seeking transposition of he rself as defendant on account of her election as President of Moterjhar Gaon Pan chayat. The aforesaid petition was registered as Misc. (J) No. 101 of 2008. The learned Munsiff No. 2 took up both the petitions and by a common order dated 26- 6-2008 allowed striking of her name as plaintiff and transposition as defendant. The petitioner thereafter filed a review petition being No. 575 on 19-7-2008 f or review of the order dated 26-6-2008 passed in Misc. J. Case No. 339 of 2007 c ontending inter alia that striking of her name as one of the plaintiffs and all owing her to be transposed as one of the defendants on her election as President of the Gaon Panchayat, the suit could not be proceeded with. The learned Munsi ff by his order dated 19-7-2008 dismissed the Review Petition No. 575. Being agg rieved by both orders these instant revisions has been filed. This petitioner al so filed another review petition for review of the order dated 26-6-2008 by whic h amendment was allowed. It was however, turned down vide order dated 19-7-2008. 4. We heard Mr. H.R.A. Choudhury, learned Sr. counsel for the petit ioner and Mr. G. P. Bhowmik, learned counsel for the respondents. Mr. H.R.A Chou dhury, learned senior counsel while initiated his argument submitted that both t he petitions could be disposed of confining only to the impugned order dated 26- 6-2008 passed in Misc. (j) Case Nos. 100 of 2008 and 101 of 2008. 5. The issue of striking of the name of the respondent No. 1 as pla intiff and addition of her name as one of the defendant was raised before the tr ial court on account of her election as President of Moterjhar Gaon panchayat. A t the time when the suit was instituted the respondent No. 1 was one of the memb ers of the said gaon panchayat. Her election as President of the Moterjhar Gaon Panchayat created some disadvantages to remain as one of the plaintiffs being no longer remained as one of the members of the Panchayat. As a Member of the sai d gaon panchayat along with others she opposed shifting of the gaon panchayat of fice to Morakura. The then President of the gaon panchayat, the petitioner herei n was in favour of the shifting of the office of the gaon panchayat either to Mo rakura or any other place suitable therefor. Having been elected as President of the said gaon panchayat, the respondent No. 1 had no other option than to apply for striking out her name as plaintiff. She also applied to add her as one of t he defendants in the Title Suit No. 306 of 2006. The learned Munsiff No. 2, Dhub ri allowed both the petitions of the respndent No. 1. The review sought for was however, rejected by the learned Munsiff No. 2, Dhubri by is order dated 19-7-20 08. 6. Now, the issue before us whether a plaintiff can be transposed as defendant. Mr.H.R.A. Choudhury, learned Sr. counsel while supporting the case of the petitioner strenuously rejected that the Code of Civil Procedure does no t contain rather provide any provision for transposition of plaintiff as defend ant, however, the reverse is possible since the substantive law agrees to theref or. Rule 1A of Order 23 of the CPC has been inserted by Act 104 of 1976 which sp eaks for transposition of defendant as plaintiff. Rule 1 of Order 23 relates to withdrawal of suit or abandonment of part of claim. It speaks for that at any ti me after the institution of the suit the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of claim. Provided that where a plaintiff is a minor or other person to wh om the provisions contained in Rules 1 to 14 of Order 32 extend, neither the sui t nor any part of the claim shall be abandoned without the leave of the court. R ule 1A of Order 23 says where suit is withdrawn or abandoned by a plaintiff unde r Rule 1 and a defendant applies to be transposed as a plaintiff under Rule 10 o f Order 1, the court shall in considering such application have due regard to th e question whether the applicant has a substantial question to be decided as aga inst any of the other defendants. In other words that when the plaintiff withdra ws a suit or abandons under Rule 1 against any defendant or defendants and when the defendant(s) applies under Order 1 Rule 10 for his transposition as a plaint iff, the court may allow such transposition if in the opinion of the court there arises some substantial question to be decided against any of the other defenda nts. So in such a situation the defendant(s) can take resort to Rule 10(2) Order 1 of the CPC. Over and above, the court may on its own motion or on the basis o f application of either party at any stage of the proceeding order that 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 o r defendant or whose presence before the court may be necessary in order to enab le the court effectually and completely to adjudicate upon and settle all questi ons involved in the suit may be added. Therefore, Rule 10(2) of Order I gives a jurisdiction to the court to strike out or add any person whether as plaintiff or defendant if in the opinion of the court such striking or adding is a require ment to enable it effectually and completely adjudicate upon and settle all ques tions involved in the suit. Rule 4 of Order 1 speaks for amendment of the plaint when defendant is added. 7. In the Code of Civil Procedure it is nowhere provided that a pla intiff can be transposed as defendant. Taking the opportunity of non-existence o f any specific rule in the Code for such a jurisdiction, Mr. HRA Choudhury, lear ned Sr. counsel urged this court that the learned Munsiff No. 2 committed error and illegality in allowing the respondent No. 1 (the plaintiff No. 1 of the Tit le Suit No. 306 of 2006) to transpose herself as one of the defendants on accoun t of her election as President of Moterjhar Gaon Panchayat. It was submitted by Mr. H.R.A Choudhury, learned Sr. counsel that the interest of the respondent No. 1 as one of the plaintiffs in the suit stands at a different footing than the i nterest of herself while putting her as defendant. Her interest stands at the di fferent footing that of the interest earlier accrued to her as plaintiff. So in the fitness of things she cannot contest the suit as one of the defendants. Rule 1A of Order 23 altogether stands at a different footing. 8. Now, in the facts situation in view of filing of an application under Order I Rule 10(2) of the CPC to strike out her name as plaintiff and by r esorting the same provision to add her name as defendant whether such striking o ut and adding would mean and mean the transposition of plaintiff as defendant. T he suit was filed by the respondents No. 1 and others against the petitioner and two others as defendants, he being the then President of the Moterjhar Gaon Pan chayat. She being elected as President of the Moterjhar Gaon Panchayat subsequen tly in place of the petitioner, difficulties arose on her part to proceed with t he suit as plaintiff. The respondent No. 1 finding no other alternative filed ap plication under Rule 10(2) of Order I CPC to strike out her name as plaintiff. S imultaneously, she also filed another application under the same provision to ad d her as defendant in the suit. The trial court allowed both the applications by impugned order dted 26-6-2006. It is not our case that the opposite party No. 1 being one of the plaintiffs filed application under Rule 10(2) of Order I to ad d her as one of the defendants on her election as President of the Panchayat. Bu t apparently, before resorting to this provision, she also made a prayer to stri ke out her name as plaintiff under provisions of Rule 10(2) of Order I. Therefor e, apparently after disposal of the application for striking of her name as plai ntiff and, if allowed, the other application under Order I Rule 10(2) for adding her as one of the defendants would have been maintainable with much conflict bu t the learned trial court without disposing of the application by an independent order took both the applications together and disposed of by the common order under challenge. Such disposal of the petitions gives an indication that the opp osite party No. 1 is transposed as one of the defendants which is not sanctioned by the provisions of the CPC but if we consider the applications so filed by th e opposite Party No. 1 separately with the intention intended thereto, it would perhaps not be appropriate to say that the respondent No. 1 has been transposed as defendant while she assumed character as plaintiff. A meticulous reading of b oth the applications and intention indicated thereto would give an impression th at the submission of Mr. H.R.A. Choudhury that the learned trial court committed error and illegality would not be acceptable. Mr. H.R. A Choudhury, further arg ued in the face of the record that whole suit ought to have been withdrawn by th e plaintiffs with liberty to file afresh without resorting to such procedure not recognized by Code of Civil Procedure. Mr. HRA Choudhury, therefore, urged this court to set aside the impugned order dated 26-6-2008 and also to set aside the order(s) dated 19-7-2008 by which the review application was rejected. Mr. Chou dhury, therefore, submitted that the matter may be remanded back to the trial co urt with a direction to proceed in accordance with law. 9. Resisting the argument advanced by Mr. HRA Choudhury, Mr. G.P. B howmik, learned counsel appearing for the respondents contended that no illegali ty or error had been committed by the trial court by allowing both the applicati ons. It was argued by Mr. Bhowmik that the respondent No. 1 though was one of th e plaintiffs in the suit could not have proceeded with the suit on account of he r election as President of the Goan Panchayat. The earlier President, the petiti oner herein having been defeated in the election the suit is required to be defe nded by the President of the said Gaon Panchayat and the respondent No. 1 being elected she is bound by her position as President to defend the suit brought in by other plaintiffs. It was also argued that the provision of Rule 10(2) of Orde r I gives jurisdiction to the court to strike out or add party for the purpose o f effectual and complete decision of the issues involved in the suit. The respon dent No. 1 by her application under the Rule as indicated above sought for strik ing out her name and also prayed for adding her name as one of the defendants. S o in that situation both the aspects of the matter are to be looked into differe ntly and consideration of the same in an amalgamated manner would give rise a di fferent manner which virtually was not the intention of the respondent No. 1. It was argued by Mr. Bhowmik that a plaintiff would be at liberty to apply for str iking his or her name from the plaint. If an application is allowed she or he wo uld be no longer a plaintiff in the suit. Subsequently, he or she may apply to a dd him or herself as defendant in the suit. Striking out or adding is provided i n Rule 10(2) Order I of CPC. Mr. Bhowmik, learned counsel for the respondents in order to strengthen his submission relied in the decision in the case between B ijoyo Kumar Pattanaik Vrs. Basanta Kumar Patnaik and others; reported in AIR 200 0 SC 3587. The Apex Court while dealing with the Civil Appeal No. 1267 of 1998 a llowed transposition of the plaintiff Nos. 2 to 5 as defendant Nos. 4 to 7 with an object to by-pass a zig zag procedure which would be purely technical in nat ure without serving substantial course of justice for all the contesting parties . Such transposition was allowed under order 1 Rule 10 CPC. In paragraph 4 and 5 the Apex Court held as follows: 4. A bare perusal of the aforesaid facts clearly indicates that the plainti ff must thank himself for finding himself in this procedural whirlpool and for s uffering from the predicament of his suit for part5ition filed as early as in 19 75 being not still processed on merits by any competent court in accordance with law. After the decision of the High Court in Miscellaneous Appeal, it was for h im to have applied to the learned trial judge to get the plaint returned for pre sentation to the proper court which would have been the correct procedure. Inste ad of doing so, even while earlier applying for the same relief but having withd rawn the same, he merely pressed the application under O. 1 R, 10, C.P.C for bei ng granted transposition of plaintiffs Nos. 2 to 5 as defendants Nos. 4 to 7. Th at application obviously could not be granted by the trial court which had no p ecuniary jurisdiction to entertain the suit itself. 5. Under these circumstances, two courses would not be open at this stage. Firstly, the order of the trial Court as confirmed by the High Court can be sust ained and the plaint may be ordered to be returned to the plaintiff for presenta tion to the competent court namely, the Court of learned Sub-Judge, Bhubaneswar. But then appellant’s application under O.1, R, 10 C.P.C can obviously be moved before that court as clearly indicated earlier by the order of the High Court i n review proceedings noted above. Once that happens and if that application is g ranted by the Court of learned Sub-Judge then again the suit will have go to the Court of learned Munsif wherein on payment of one set of court fees by the sole plaintiff the suit can proceed on merits. This would be a zig zag procedure whi ch will be purely technical without serving substantial course of justice for al l contesting parties. Under the circumstances a better course as indicated herei n deserves to be adopted. In order to short-circuit the procedure which has alre ady delayed the decision of suit No.O.S No. 67 of 1975-I and to serve the ends of justice we deem it fit under Article 142 of the Constitution of India to pas s the following order. While sustaining the order of the trial Court as confirme d by the High Court, the appellant is permitted to transpose the original plaint iffs Nos. 2 to 5 as defendants Nos. 4 to 7. The plaint in O. S. No. 67 of 1975- I shall stand amended accordingly. The appellant shall carry out the aforesaid a mendment, in the plaint, which we are told is lying in the Court of Munsif, Khur da, within eight weeks from the receipt of a copy of this order by the trial Cou rt. Once that amendment is carried out the appellant who will now remain as sole plaintiff will have to pay the proper court fees and if there is any short-fall , he will have to make good of the same as he will be treated as sole plaintiff. After this amendment is carried out and proper court fees are paid learned tria l Judge who will then admittedly have pecuniary jurisdiction will proceed with t he suit, O.S No. 67 of 1975 - I in accordance with law and dispose of the same a s expeditiously as possible and preferably within six months from the date on wh ich the amendment is carried out by the appellant in the plaint as permitted by us by our present order. It is also made clear that if the amendment is not carr ied out in the light of the concession given by us to the appellant, the suit sh all stand rejected on the ground of absence of pecuniary jurisdiction and also f or non-prosecution. Office is directed to send a copy of this order to the Court of learned Munsif Khurda for information and necessary action. The appeal is ac cordingly allowed to the aforesaid extent. There will be no order as to costs. 10. In our related suit it is noticed that the respondent No. 1 seve ral others as plaintiffs instituted suit for declaration and for injunction agai nst the petitioner herein and two others as defendants. It would be appropriate to state that at the time of filing of the suit the respondent No. 1 was one of the members of Moterjhar Gaon Panchayat while petitioner herein was the Preside nt of the said gaon panchayat. Respondent No. 1 contested the election of the ga on panchayat and elected as President. Being elected as such she wanted to strik e out her name from the array of the plaintiffs by resorting to provisions of or der I Rule 10(2) of the CPC. She also by resorting the same provision wanted to implead herself as one of the defendants on account of her election as President . The petitioner herein lost the election and he was no longer the President of the Moterjhar Gaon Panchayat. In view of the developments and on applications be ing filed under order I Rule 10(2) CPC by the respondent No. 1 herein, the lea rned Munsiff by common order disposed of both the applications of the respondent No. 1 herein. As argued by Mr. HRA Choudhury, learned Sr. counsel on election o f respondent No. 1 as President of the Moterjhar Gaon Panchayat and on account o f defeat of the present petitioner in the said election, in view of the decree a s sought for in the suit , the plaintiffs ought to have withdrawn the suit and r equired to file fresh suit of course with liberty to file as such. Such step be ing not adopted by the plaintiffs, the recourse adopted by the respondent No. 1 on her selection as President ought to have been refused by the learned Munsiff . The Law laid down by the Apex Court in the case (supra) allowed transposition of plaintiff as defendant under Order 1 Rule 10 of the CPC. The ratio would also be applicable in the present case. The learned Munsiff, therefore, appears to h ave not committed any error or illegality in allowing both the applications file d by the respondents No. 1 herein. It is indicated herein before that such trans position was not allowed by the learned Munsiff basing on a single application u nder Order I Rule 10(2). Transposition was allowed on the basis of two applicati ons filed under the provision(s). The first application was in respect of striki ng out her name as plaintiff while the second application was made for adding he r as defendant. 11. The impugned orders, passed by the learned Munsiff apparently do not invite any interference from this end. Both the revision petitions accordin gly stand dismissed. No cost.