Civil Revision No. 935 of 2010 1 In the High Court of Punjab and Haryana, at Chandigarh. Civil Revision No. 935 of 2010 Date of Decision: 5.7.2010 Mrs. Santosh Gupta and Another …Petitioners Versus State Bank of Patiala and Others …Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Pandit Vinod Sharma, Advocate for the petitioners. Mr. H.N. Mehtani, Advocate for respondent No.1. None for respondent No.3. Kanwaljit Singh Ahluwalia, J. (Oral) M/s Bee Gee Corporation Private Limited, respondent no.3 and M/s Bee Gee Potteries Private Limited, respondent No.4 and their directors had obtained a loan from respondent No.1-Bank. Naseeb Chand Gupta stood as a guarantor. Respondent No.1-Bank has filed a suit for recovery. The defendants to the suit had lost as the decree was passed in favour of respondent No.1-Bank. Naseeb Chand Gupta, who stood as a guarantor, has expired. His legal representatives have filed Regular Second Appeal No. 1034 of 2008, which was decided by a Co- ordinate Bench of this Court and it was held that an opportunity of hearing ought to be granted to the legal representatives of Naseeb Civil Revision No. 935 of 2010 2 Chand Gupta, whose property was attached as he stood as a guarantor. As a result of the order dated 21.4.2009 (Annexure P2), passed by this Court in Regular Second Appeal, the Appellate Court is seized of the appeal which was filed by respondents No.3 and 4. During the pendency of the appeal, an application under Order I, Rule 10 read with section 151 CPC was filed by the legal representatives of Naseeb Chand Gupta that they should be transposed as appellants. Pandit Vinod Sharma, Advocate, appearing for the petitioners, has urged that the interest of the petitioners is in conflict with respondent No.1-State Bank of Patiala. Therefore, if both respondents No.3 and 4 are treated as respondents, he will not be able to project his plea that respondent No.1-Bank could not effect any recovery from Naseeb Chand Gupta. It has been further urged that an appeal has been abandoned by the appellants, therefore, the plea, which is contrary to the interest of respondent No.1-Bank, ought to be projected. A grievance has been made that the lower Appellate Court has committed a grave error by not allowing the above said application whereby a prayer was made that the legal representatives of Naseeb Chand Gupta, who were impleaded as respondents, be transposed as appellants. Learned counsel for the petitioners has placed reliance upon a judgment rendered in case Sm. Saila Bala Dassi v. Sm. Nirmala Sundari Dassi and Another AIR 1958 Supreme Court 394, wherein it was observed as under:- “10. We accordingly set aside the order of the Civil Revision No. 935 of 2010 3 Court below dated August 6, 1956 and direct that the appellant be brought on record as additional appellant in Appeal No. 152 of 1995. As Sudhir Kumar Mitter, the appellant now on record, has dropped the fight with the first respondent, we conceive that no embarrassment will result in their being on record two appellants with conflicting interest. But, in any event, the Court can, if necessary, take action suo motu either under O.I R.10 or in its inherent jurisdiction and transpose Sudhir Kumar Mitter as second respondent in the appeal, as was done in In re Mathews: Oates v. Mooney, 1905-2 Ch. 460(G), and Vanjiappa Goundan v. Annamalai Chettiar, 1939-2 Mad LJ 551: (AIR 1940 Mad 69) (H). As for costs, the appellant should, in terms of the order of this Court granting her leave to appeal, pay the contesting respondent her costs in this appeal. The costs of and incidental to the application in Appeal No. 152 of 1955 in the High Court will abide the result of that appeal”. A further reliance has been placed upon a judgment rendered in case Kiran Tandon v. Allahabad Development Authority and Another (2004)10 Supreme Court Cases 745 to say that the Court has a power under Sub-rule (2) Order 1 Rule 10 CPC to transfer a defendant to the category of plaintiffs and where the plaintiff agrees, Civil Revision No. 935 of 2010 4 such transposition should be readily made. An emphasis has been laid upon the following observations of the Hon'ble Apex Court:- “...This power could be exercised by the High Court in appeal, if necessary, suo motu, to do complete justice between the parties. In fact, the pleas raised by ADA and the State of U.P. were identical and in order to effectuate complete adjudication of the question involved in the appeal it was in the interest of justice to transpose the State of U.P. as Appellant 2 in the appeal. Therefore, no exception can be taken to the course adopted by the High Court in transposing the State of U.P. as the appellant in both the appeals”. Learned counsel for respondent No.1-Bank has not brought into notice of this Court any contrary case law. However, he urged that it will amount to virtual substitution of new appellants and the legal representatives have no legal right to be transposed as such, especially when they have not preferred any appeal in their own right. After hearing learned counsel for the parties, this Court is of the view that order (Annexure P2) in Regular Second Appeal No. 1034 of 2008 ought to be taken into consideration, while deciding the present revision petition. This Court, in Regular Second Appeal, at the instance of petitioners, observed as under:- “A perusal of the impugned judgment shows that the entire thrust of the argument from 11 to 16 shows that the Court was dealing with the Civil Revision No. 935 of 2010 5 application of the appellants for being impleaded as legal heirs and after allowing the same it simply went on to dispose of the matter on merits without noticing the contentions of the learned counsel for the appellants. When the impugned order is tested on the contention which has been raised before this Court that the appellants were not heard, then the same appears to be correct, as no contention of the learned counsel for the appellants has been noticed and the impugned order has been passed straightway. In this view of the matter, I am of the considered opinion that grave violation of principles of natural justice has been committed as the impugned judgment and decree has been passed without hearing the learned counsel for the appellants. It is, therefore, deemed appropriate that the impugned judgment and decree be set aside as the same has been passed without hearing the learned counsel for the appellants on merits and the matter is remitted back to the first Appellate Court to dispose it of afresh after hearing the respective parties”. To give effect to the observations of this Court, in the above said Regular Second Appeal, if a rightful opportunity is to be granted to the appellants, they must be allowed to project their case, which is Civil Revision No. 935 of 2010 6 contrary to the case of respondent No.1-Bank. Therefore, they must be transposed as appellants. Thus the present revision petition is accepted, application under Order I, Rule 10 read with section 151 CPC, filed by the petitioners is allowed and they are transposed as appellants. (Kanwaljit Singh Ahluwalia) Judge July 5, 2010 “DK”