,^-Ew^ HIGH COURT OF CHHATTISGARH. BILASPUR Writ Petition (Cl No.7171 of 2008 l^ PETITIONER/: (Defendant No.3) RESPONDENTS/: (Plaintiffs) (DefendantNo.1) 2. 3. Ravi Prakash Sharma, son of Shri R.P. Sharma, aged about 43 years, resident of Street No.R-2, Vinoba Nagar, Bilaspur. Versus Satyadev Pandey, son of Shri Teja Prasad Pandey, aged about 60 years, resident of Bus Stand, Bajrang Pan Centre, Bilaspur. Dr. Krishna Pratap Pandey, son of Shri Keshav Prasad Pandey, aged about 37 years, resident of Imlipara, Bilaspur. Kirankant Robinson, son of Shri P.C. Robinson, aged about 50 years, resident of Near Kali Mandir, Tifra, Bilaspur, presently residing at House No._ Babji Nagar, Ring Road No.2, Bilaspur. (Defendant No.2) 4. State of Chhattisgarh, Collector, Bilaspur. through the {Petition underArticle 226/227 ofthe Constitution of India} Present: Mr. B.P. Sharma, counsel forthe petitioner. Mr. K.R. Nair, counsel for respondents No.1 & 2. None present for respondent No.3. No representation is made. Mr. Akhil Agrawal, Panel Lawyer for the State/respondent No.4. Sinale Bench: Hon'ble Mr. T.P. Sharma. J ORDER (7-9-2011) 1. By this petition, the petitioner has challenged legality and propriety of the order dated 2-12-2008 passed by the 8th Additional Dj-strict Judge (FTC), Bilaspur, in Civil Suit No.8-A/2008, whereby the application filed for transposition of the petitioner herein i.e. defendant No.3 as plaintiff under Order 1 Rule 10 (2) of the Code of Civil Procedure, 1908 (for short 'the Code'), has been dismissed. 2. I have heard learned counsel for the parties, perused the order impugned, copy of the plaint, copy of the written statement filed on behalf of the petitioner herein, copy of the applicatiort filed under Order 1 Rule 10 (2) of the Code, reply to the said application and copy ofthe agreement. 3. Learned counsel for the petitioner submits that respondents No.1 & 2 herein and the petitioner herein entered into an agreement with respondent No.3 herein for purchasing land and paid advance to respondent No.3, but respondents No.1 & 2 have filed suit for specific performance of contract -1^^^ ^% '% €' "" ^ irt^fil&.^ I '"-"-"^ i ^/ ^ .. 'i-y /^- against respondent No.3 and afterwards they have impleaded the petitioner herein as defendant No.3 in the said suit. Interest of the petitioner and respondents No.1 & 2 is one and the same and they are party to that agreement as purchasers. There is no adversary interest between the petitioner and respondents No.1 & 2. Therefore, the Court was under obligation to direct the plaintiffs/respondents No.1 & 2 herein to implead the petitioner herein/defendant No.3 as plaintiff. 4. Learned counsel Tor the petitioner placed reliance in the matter of R.S. Maddanappa (deceased) after him by his legal representatives v. Chandramma and another1 in which the Supreme Court has held that considering the claim of defendant, the Court could have transposed such defendant as a co-plaintiff and the power under this provision is exercisable by the Court even suo motu. Learned counsel further placed reliance in the matter of Kiran Tandon v. Allahabad Development Authority and another2 in which the Supreme Court has held 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 1, 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. Learned counsel also placed reliance in the matter of Kasturi v. lyyamperumal and others in which the Supreme Court has held that in case of suit for specific performance of contract, the scope of adjudication would be limited and first the Court is required to decide the suit keeping in mind the scope ofthe suit. 5. On the other hand, learned counsel for respondents No.1 & 2 opposes the petition and submits that the plaintiffs/respondents No.1 & 2 herein have filed the aforesaid suit and have specifically pleaded that the petitioner herein has not entered into agreement and his name has been shown initially, he is not party to the agreement, therefore, he cannot be joined as a piaintiff and no order can be passed to transpose him as plaintiff. 1AIR 1965 SC 1812 2 AIR 2004 SC 2006 3 (2005) 6 SCC 733 6. Learned counsel for respondents No.1 & 2 placed reliance in the matter of Mumbai International Airport Private Limited v. Regency Convention Centre and Hotels Private Limited and others4 in which the Supreme Court has held that discretion of court to add a person as party is limited to persons found to be necessary party or proper party. Moreover, such discretion is judicial discretion and has to be exercised according to reason and fair play and not according to whims and caprice. Learned counsel further placed reliance in the matter of Khazir Bhat v- Ahmad Dar and others in whichthe High Court of Jammu and Kashmir has held that the course of transposing one of the contesting defendants as a co-plaintiff so as to enable him to amend the plaint according to the contention of the defendants will not be proper. That would result in one co-plaintiff fighting the other co-plaintiff; one co-plaintiff seeking to amend the plaint which the other co-plaintiff will surely resist. It will be extra-ordinary to invoke the powers of a Court under Order 1 Rule 10 of the Code to create a clash between the plaintiffs inter se and make practically a fiasco of the claim of the original plaintiffs. 7. As per copy of the plaint and other documents, initially, the petitioner herein has not been impleaded as plaintiff or defendant, thereafter, he has been impleaded as defendant No.3. Specific contrary pleading has been amended by respondents No.1 & 2 herein in their pleading that the petitioner herein is not party to the agreement, he has not entered into agreement, he is not agreed to purchase the property and he isonly an ostensible purchaser. The petitioner herein has also filed written statement in which he has specifically pleaded that he has entered into agreement along with respondents No.1 & 2 herein with respondent No.3 herein, he has denied the adverse allegations made in the plaint relating to him and he has also pleaded in para 16 of his written statement that the sale deed dated 16-1-2006 executed by respondent No.3 in favour of respondents No.1 & 2 relating to part of the land has been executed with a view to cause domestic loss to him. The petitioner herein has also denied the claim of relief by the plaintiffs/respondents No.1 & 2 herein. Though this is suit for specific performance of contract, even respondents No.1 & 2 have not pleaded and admitted the claim of the petitioner as a pari:y to the agreement, as purchaser. Even by exduding the petitioner, respondents No.1 & 2 have purchased the part of land from respondent No.3 which was also the subject matter ofthat agreement in which the petitioner is shown as party. 8. As held by the Supreme Court in the matters of R.S. Maddanappa (supra), Kiran Tandon (supra) and Kasturi (supra), the court is competent to order for transposition of a party in appropriate case i.e. for transposition of a defendant Y/ 4 (2010)78cc 417 5 AIR 1960 Jammu and Kashmir 57 Soma 4 /^ as a plaintiff and the court is required to keep in mind the scope of dispute. Considering the specific pleading of respondents No.1 & 2 herein and the petitioner herein, the Court below has not committed any illegality by dismissing the application filed on behalf of the petitioner herein for transposition of himself as a plaintiff. 9. In thelight of comptete contradictory pleading and claim, 1 do not find any illegality in the order impugned requiring interference in exercise of supervisory jurisdiction. Consequently, the petition is dismissed. No order as to costs. Sd/- T.P. Sharma Judge