Civil Revision No.319 of 2007(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.319 of 2007(O&M) Date of Decision: May 18, 2011 Iqbal Singh and another .....Petitioners v. Joginder Pal Jain and others .....Respondent CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.M.K.Garg, Advocate for the petitioners. Mr.P.S.Dhaliwal, Advocate for respondents No.1,2,3,5,6 to 9. Mr.Sanjay Jain, Advocate for respondent no.4. ..... RAM CHAND GUPTA, J. C.M.No.13049-CII of 2011 Requests for exemption from filing certified copies of Annexures P2 to P5 and for placing on record the same. The same are taken on record subject to all just exceptions. Application stands disposed of accordingly. C.R.No.319 of 2007 The present revision petition has been filed under Article 227 of the Constitution of India for setting aside orders dated 2.9.2003 and 24.8.2006, passed by learned Civil Judge, Junior Division, Moga, vide which application filed by respondents no.2 and 3 -defendants no.9 and 10 for impleading them as co-defendants was allowed and thereafter on another application, they were ordered to be transposed as co-plaintiffs. Civil Revision No.319 of 2007(O&M) -2- I have heard learned counsel for the parties and have gone through the whole record carefully including the impugned orders passed by learned trial Court. Facts relevant for the decision of present revision petition are that a suit for declaration was filed by respondent no.1-plaintiff-Joginder Pal Jain to the effect that he is lessee in possession of plot in dispute on the basis of registered Lease Deed dated 22.8.1994 and in the alternative, relief of possession as lessee of the property is also claimed. It has been averred that United Church of Northern India Trust Association, i.e., defendant no.1, was recorded as owner in possession of the suit property, which was leased out for 99 years vide Registered Lease Deed dated 9.5.1990 in favour of one Shri K.B.Joel. After death of Shri K.B.Joel, he was succeeded by defendants no.4 to 8 being his sons, daughters and widow. Defendants no.4 to 8 vide registered lease deed dated 22.8.1994 leased out the suit property in favour of plaintiff for a period of 80 years. The said lease deed was also duly registered and hence, plaintiff became lessee in possession of the property in dispute. Petitioners-defendants no.2 and 3 alleged to be owners of the property in dispute on the plea that the same was given to them by one William Bansi Lal Mattoo as General Attorney of defendant no.1 and hence, even if their contention is taken to be correct, their status is that of only licencee and having no right to interfere in possession of plaintiff. During pendency of the suit, the property in dispute was sold to respondents no.2 and 3-defendants no.9 and 10 by virtue of registered sale deed by defendant no.l and hence on their application, they were impleaded as defendants in the suit. Later on, the present application has been filed by respondents no.2 and 3-defendants Civil Revision No.319 of 2007(O&M) -3- no.9 and 10 for transposing them as co-plaintiffs on the ground that they are having no dispute with the plaintiff and rather plaintiff as well as they are having dispute with present petitioners`-defendants no.2 and 3. The application was not contested by respondent-plaintiff. The same was only contested by present petitioners on the plea that lease deed and the sale deed are null and void and in fact they have become owners of the same by way of compromise in a civil suit filed by them in pursuance of which an agreement to sell was executed in their favour by William Bansi Lal Mattoo, General Attorney of defendant no.1. The said application was allowed by learned trial Court vide impugned order and respondents no.2 and 3-defendants no.9 and 10 were permitted to be transposed as co-plaintiffs. It has been contended by learned counsel for the petitioners- defendants no.2 and 3 that a defendant can be transposed as a plaintiff only if suit is withdrawn or abandoned by the plaintiff, as per Order 23 Rule 1-A of the Code of Civil Procedure (for short `the Code'). On the point he has placed reliance upon a judgment of Hon'ble Kerala High Court rendered in Abraham v. Antony Mathew, 2007(5) RCR (Civil) 522. On the other hand, it has been contended by learned counsel for the respondents no.2 and 3-defendants no.9 and 10 that as they are having no dispute with plaintiff and as their interest is common and only dispute is against petitioners-defendants, they have been rightly transposed as co- plaintiffs by learned trial Court vide impugned order. On the point he has placed reliance upon a judgment of Hon'ble Karnataka High Court rendered in Irapawwa alias Irawwa and others v. Channabasawwa and others, AIR 2005 Karnataka 84. Civil Revision No.319 of 2007(O&M) -4- Law is well settled that a Court has power under Order I Rule 10(2) of the Code to transpose a defendant to the category of plaintiff and the same can be done by the Court suo motu or on the application of any of the defendants, who wants to be transposed as plaintiff. Transposition can be made to do complete justice between the parties and with a view to avoid multiplicity of proceedings. In the present case, respondents no.2 and 3-defendants no.9 and 10 acquired right in the property in dispute during pendency of the suit, as they became owners by virtue of sale deed allegedly executed by its owner, i.e., defendant no.1. Original plaintiff is claiming right on the basis of registered lease deed as a lessee, whereas respondents no.2 and 3- defendants no.9 and 10 are claiming right as owners under the earlier owner. Present petitioners-defendants are claiming right of ownership on the basis of some agreement to sell executed in their favour in pursuance to a compromise. Plea has been taken by petitioners-defendants that lease deed and sale deed are null, void and not binding upon their rights. However, these pleas have to be decided only after the parties are allowed to lead evidence in support of their respective contentions. So far as Abraham's case (supra) is concerned, on which reliance has been placed by learned counsel for the petitioners, in that case plaintiff had gone abroad and hence, he executed a power of attorney in favour of one of the defendants, who wanted to be transposed as plaintiff, which was not allowed by Hon'ble Kerala High Court. Hence, this judgment is not applicable to the facts of this case. However Irapawwa alias Irawwa and others's case (supra) on which reliance has been placed on behalf of the respondents no.2 and 3- Civil Revision No.319 of 2007(O&M) -5- defendants no.9 and 10, is applicable to the facts of present case. The said judgment was rendered by Hon'ble Karnataka High Court by relying upon a judgment of Hon'ble Apex Court in Kiran Tandon v. Allahabad Development Authority and Anr, AIR 2004 SCW 2089: AIR 2004 SC 2006, wherein it was observed as under:- “4.....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 pro forma 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 Civil Revision No.319 of 2007(O&M) -6- 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 Prasad, 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 effectuate 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.” In view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned trial Court in allowing the application of respondents no.2 and 3 -defendants no.9 and 10 for transposing them as co-plaintiffs with original plaintiff in the suit or that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. Moreover, law has been well settled by Hon'ble Apex Court in Surya Dev Rai v. Ram Chander Rai and others, 2003(6) SCC 675 : AIR 2003 SC 3044: 2004(1) RCR (Civil) 147, that supervisory jurisdiction is not available to be exercised for indulging in re-appreciation or evaluation of evidence or correcting the errors for drawing inference like a Court of appeal. It has been observed as under:- “Be it a writ of certiorari or the exercise of supervisory Civil Revision No.319 of 2007(O&M) -7- jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby. In another judgment rendered in Ranjeet Singh v. Ravi Parkash, AIR 2004 Supreme Court 3892 : (2004) 3 SCC 682, it was held by Hon'ble Apex Court that the error committed by the Court or authority on whose judgment the High Court was exercising jurisdiction should be an error which is self evident and an error which needs to be established by lengthy and complicated arguments or by indulging a long drawn process of reasoning cannot be an error available for correction by writ of certiorari. It is further clarified that if it is reasonably possible to form two opinions on the same material, the finding arrived at one way or the other cannot be called a patent error. Hence, the present revision petition is, hereby, dismissed being devoid of any merit. 18.5.2011 (Ram Chand Gupta) meenu Judge Note: Whether to be referred to Reporter? Yes/No.