IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1948 of 2005 Dinesh Kumar Singh, son of late Ram Kishore Singh, presently residing in L.I.G. Flat No. 290, Defence Colony, Lohianagar, P.S. Kankarbagh, District Patna. ---------- (Defendant No.9 in the court below) ------ Petitioner Versus 1. Smt. Duli Hansda @ Dully Hansada, Wife of late Obidhan Tudu. 2. Manager Tudu, son of late Obidhan Tudu under the guardianship of his mother and natural guardian Smt. Duli Hansda who represents legal heirs and legal representatives of deceased Obidhan Tudu. 3. Police Tudu. 4. Jatan Tudu. Both minor sons of late Shishu Tudu under the guardianship of their own Aunt and natural guardian Smt. Duli Hansda, who represents them as legal heirs and legal representatives of deceased Shishu Tudu. All residents of village Dhobana, P.O. Golbanda, P.S. Masalia, District Dumka (Jharkhand). -------(Plaintiffs in the court below ---------- Opposite Party 1st Set ----------- 9 10.12.2010 Having heard Mr. Sukumar Kumar Sinha, learned counsel for the petitioner and Mr. Rambali Jha as also Mr. Sanjay Kumar Sinha, this Court is of the considered opinion that the impugned order, rejecting prayer of the petitioner for his transposition as a plaintiff, is not in the spirit of Order 23 Rule 1(A) of the Code of Civil Procedure. It is not in doubt that when the original plaintiff Smt. Duli Hansda with four others had filed the suit in hand, Title Suit No. 156 of 2003 for the following relief; “28(a) That on adjudication it be declared by the decree of the 2 court that the deed of conveyance dated 18.2.2002 executed by the defendant no.1 in favour of defendant no.3 in respect of the suit property as widow of late Shiv Lal Tudu and the Sale-deed dated 26.2.2002 in favour of defendant no.4 are illegal, null and void abinitio and not binding on the plaintiffs and also that by virtue of said conveyance deed dated 18.2.2002 and 26.2.2002 the Principal defendant no.3 nor Principal defendant no.4 acquired any right, title and interest with respect to the suit property. (b) That during the pendency of the suit the defendant no.4 be restrained by an order of ad- interim injunction from disturbing the peaceful possession of the plaintiffs through their tenant namely Proforma defendant no.9.” it was categorically mentioned therein that not only the petitioner, defendant no.9 in the suit, was the tenant of the house, in question, but in fact there was some sort of an interest created in him of becoming the original owner. In this context, paragraph no.21 and 22 of the plaint is relevant and are quoted hereinbelow:- 3 “21. That it is worth mentioning here that in the year 1990 late Bitia Murmu had fallen seriously ill and as such for her treatment and other legal necessities she had taken an accommodative loan from the defendant no.8 which she assured the defendant no.9 to return with interest by the year December 1995 failing which she had assured that the suit property would become to performa defendant no.9 as rightful owner. It is submitted that the said Bibita Murmu, her sons, Dhurbi Marandi and this plaintiff no.1 and other plaintiffs were and are uneducated and were knowing that further registration of the suit property required to be made nor the defendant nos.1 and 2 even informed about the final registration of the suit property either in favour of Bitia Murmu or any other legal heir of late Shiv Lal Tudu after the death of Bitia Murmu. 22. That the plaintiffs were pious obligation to the defendant no.9 being the legal heirs of Bitia Murmu and late Shiv Lal Tudu to pay off the said debt so that the sole of Bitia Murmu may rest in peace.” Mr. Sukumar Sinha, in view of the aforementioned admitted position with regard to the interest of the petitioner, would 4 submit that in the given situation when the plaintiff had sought to withdraw the suit, an application was filed for transposing the petitioner, who was earlier defendant no.9 in the suit, as plaintiff and the court below had also found that the petitioner had a specific interest but, then, it had proceeded to reject such prayer of the petitioner on the ground that on account of the petitioner being transposed as plaintiff, the nature of the suit will change. Mr. Sinha, in this context, has submitted that such assumption of the court below was wholly uncalled for, inasmuch as, all that the petitioner for the time being wanted, was a right to sue as with regard to relief which was originally prayed in the plaintiff filed by the plaintiff. He has further submitted that the scope of Order 23 Rule 1(A) is very limited and at the same time very clear, wherein, the court has to consider an eventuality where the suit is sought to be either withdrawn or abandoned by the plaintiff of transposing a defendant as the plaintiff having regard to the 5 substantial question to be decided as against any of the other defendants. He has gone to explain that once the sale deed, in question, assailed by the plaintiff was void and ab initio in view of there being no permission obtained from the Bihar State Housing Board and that the petitioner at least had a right of residence in the form of a tenant, his transposition was well permissible within the scope of the aforesaid provision of Order 23 Rule 1(A) of the Code of Civil Procedure. In this context, he has also placed reliance on the judgment of this Court in the case of Md. Muzahid Vs. John Wilson Zedak & Anr. reported in AIR 1989 Patna 2. Let it be noted that despite service of notice, only the defendant no.4, the person in whose favor the sale deed, in question, dated 26.2.2002 was executed, has been represented by Mr. Jha, who however, has raised a preliminary objection as with regard to the maintainability of the civil revision application on the ground that by the compact impugned order, there were two applications which were disposed of one being that of 6 plaintiff seeking permission for withdrawal of the suit and the other by which the petitioner, in capacity of defendant no.9, had sought permission for being transposed as plaintiff. It is his submission that as both the applications were disposed of by a common order, the petitioner, having assailed only part thereof, cannot maintain the civil revision application against the whole order. He would further submit that in fact an application ought to have been filed by the petitioner now in view of the Division Bench judgment in the case of Durga Devi Vs. Vijay Kumar Poddar & Ors. reported in 2010(2) PLJR 954 for assailing the remaining part of the order by filing a writ application under Article 227 of the Constitution of India. In the opinion of this Court, the preliminary objection in fact has been only noted for its being rejected. The whole question before the court below was that the petitioner, defendant no.9 to the suit had wanted himself to be transposed as a plaintiff at a point of time when he had come to know that the suit was being withdrawn. 7 The permission of according withdrawal of the suit, therefore, was dependant on the outcome of the result of the petition filed by the petitioner for his transposition. If the court had allowed his transposition, the prayer for withdrawal could have been automatically rejected and it is only because that the court has rejected such permission for transposition of the petitioner as plaintiff that the consequential relief has been granted by way of according permission to the plaintiff to withdraw their suit. In that view of the matter, the main issue was with regard to the transposition of the petitioner as plaintiff and if that part of the order has been challenged, there would be little left for this Court but to hold that the civil revision application is maintainable. On merit, Mr. Jha has expressed apprehension that the claim of the petitioner on the basis of an oral agreement by way of loss of Rs. 65,000/- giving him right to acquire title in the property, is wholly unsustainable being in contravention of the 8 provision of Transfer of Property Act. He has further submitted that such fictitious claim, therefore, cannot be allowed to be raised by the petitioner in the pending suit. He has also tried to support the findings of the court below that on account of transposition of the petitioner as plaintiff, the nature of the suit will change. In the considered opinion of this Court, all such apprehensions are not only misconceived but are in fact wholly premature. As on date, the only issue before the court below, while considering the prayer of the petitioner for his transposition as plaintiff, was to examine as to whether he had any interest in the relief claimed in the plaintiff. As noted above, even in the relief, the possession part was claimed by the plaintiff only on the basis of continuation of the petitioner as the tenant. Additionally, this Court would find from reading of paragraph nos. 21 & 22 of the plaint that certain interest of ownership was sought to be created in the petitioner even in capacity of tenant. How far that claim would be justifiable is not the scope of the 9 order 23 Rule 1(A) of the Code of Civil Procedure, inasmuch as, that issue has to be gone into strictly in accordance with law at the time of disposal of the suit. The issue, therefore, which could have considered by the court below as to whether the petitioner had an interest of pursuing the suit in capacity of plaintiff and to that extent, the court itself had found that; ^^&&&&&mijksDr mYysf[kr ifjfLFkfr ls Li"V gS fd oknhx.k }kjk okn i{k esa fcfV;k ewewZ dk LoRo ,oa vf/kdkj okn lEifRr ij Lohdkj fd;k x;k gS vius vH;kosnu }kjk okn dks okil ysus dk vuqefr dh ;kpuk fd, gS vkSj fcfV;k ewewZ dk LoRo vLohdkj fd;s gSA oknh dks vf/kdkj gS fd okn okil ys ldrk gSA vius vH;kosnu esa oknh ds rjQ ls okn okilh ij dksbZ 'krZ ugha j[kk x;k tgkW rd izfroknh la0&9 }kjk i{kkUrj.k vH;kosnu dk iz'u gS ;g izLrqr okn esa ,d vkSipkfjd izfroknh gS rFkk blds fo:) dksbZ Hkh vuqrks"k dh ;kpuk ugha dh x;h gSA fdUrq oknh us vius okn i= esa ;g Lohdkj fd;k gS fd fcfV;k ewewZ us l{ke inkf/kdkjh ds vuqefr ysdj bls fdjk;snkj j[kh rFkk vLoLFk gksus ij 65]000@& :0 _.k yh Fkh rFkk mls cpu nh Fkh fd fnlEcj 95 rd :i;k okil dj nsxh vkSj ugha okil djus ij izfroknh la0&9 dk gd vf/kdkj okn laifRr ij gks tk;sxkA bl izdkj izfroknh la0&9 fcfV;k ewewZ ds gd vf/kdkj ds vUrxZr okn ifjlj ij viuk nkok dj jgk gS vkSj ;fn okn okil fy;k tkrk gS rks fu%lansg izfroknh la0&9 dk gd vf/kdkj izHkkoh gksxkA&&&&&** Having held so, the court below, in fact, had committed an error in holding that the transposition of the petitioner as 10 plaintiff could have changed the nature of the suit. If the court below was of the view that the petitioner after being transposed as plaintiff could have sought a relief for specific performance of contract, it could have made the issue clear by putting a stringent condition for such transposition confined to the relief sought in the plaint but then it could not have straightway rejected such prayer of a distant possibility of changing of the nature of the suit in future. As a matter of fact, Mr. Sukumar Sinha would submit that the petitioner herein after being transposed as plaintiff would strictly confine himself confined to the pleadings made in the plaint and would not seek any additional relief, much less, for specific performance of contract. That should be sufficient to remove the apprehension in the mind of Mr. Jha as with regard to the possible prejudice or changing of the nature of suit. In view of the above, this Court is satisfied that the court below, while passing 11 the impugned order, had committed material irregularity as also jurisdictional error in rejecting such prayer of the petitioner for being transposed as plaintiff in the case. In the result, this Civil Revision application is allowed and the impugned order is hereby set aside with a direction to the court below to pass an appropriate order for transposition of the petitioner as plaintiff and proceed to decide the suit on merits strictly in accordance with law. Rsh (Mihir Kumar Jha, J.)