HP HC | [Or. 1 R. 10 CPC] Due to subsequent events, proforma defendant had started sailing in the plaintiff’s boat and had acquired interests common to the plaintiff; Transposition of parties upheld

Himachal Pradesh High Court: Jyotsna Rewal Dua, J., while rejecting the present petition, upheld the decision of the trial court as the transposition seemed to have no effect on the nature and scope of the suit or interest of the parties involved.

Background

An application moved by one Shri Subhash Chand Puri (original proforma defendant 7) under Order 1 Rule 10 (2) read with Section 151 of Code of Civil Procedure, 1908 for transposing him as co-plaintiff was allowed by the Trial Court vide order dated 12-06-2019. Aggrieved defendant 1 (Surinder Kumar) has preferred the present petition under Article 227 of Constitution of India.

 Observation

In addition to its decision, the Court considered the following cases;

Gurmit Singh Bhatia v. Kiran Kant Robinson, 2019 SCC OnLine SC 912, wherein the Supreme Court adhered to its earlier judgment in Kasturi v. Iyyamperumal, (2005) 6 SCC 733 observing, “Order I Rule 10 CPC  cannot be invoked unless the party proposed to be added has direct and legal interest in the controversy involved in the suit.” Two tests were laid down to determine as to who is a necessary party; (1) There must be a right to some relief against such party in respect of controversy raised in the proceedings (2) No effective decree can be passed in absence of such party. It was further observed that a party claiming an independent title and possession adverse to the title of the vendor and not on the basis of the contract, in a civil suit for performance, is not a proper party. Addition/impleadment of such party shall enlarge the scope of civil suit for specific performance to suit for title and possession, which is impermissible.

  1. Dhanasundari v. A.N. Umakanth, 2019 (4) SCALE 161, wherein it was observed that object of Order 1 Rule 10 CPC is essentially to bring on record all the persons who are parties to the dispute relating to the subject matter of the suit so that the dispute may be determined in their presence and the multiplicity of proceeding be avoided.

Kiran Tandon v. Allahabad Development Authority, (2004) 10 SCC 745, where the Supreme Court reiterated the principle laid down by the Privy Council in Bhupendra Narayan Sinha v. Rajeshwar Prasad, 1931 SCC OnLine PC 32, in the words, “…for effective and complete adjudication and settling all the questions involved in the civil suit, the Court has power under sub-rule (2) Order 1, Rule 10 C.P.C. to transfer a defendant to the category of plaintiffs and where the plaintiff agrees, such transportation 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.”

 Decision

Dismissing the present petition, the Court held, Due to subsequent events, proforma defendant 7 had started sailing in the plaintiffs’ boat and had acquired interests common to the plaintiff. It was then a logical corollary to transpose the proforma defendant as a co-plaintiff. Refusal to do so would cause him prejudice. By such transposition, nature and scope of civil suit was not being changed or enlarged. Claim of proforma defendant was not inconsistent with that of original plaintiff, who had dominus litis. The issues relating to lease deed pertain to merits of main case and can be adjudicated there. There is thus no error in the impugned order passed by the learned trial Court transposing proforma defendant No. 7 as co-plaintiff.”[Surinder Kumar v. Sham Sunder, 2020 SCC OnLine HP 2855, decided on 03-12-2020]


Sakshi Shukla, Editorial Assistant has put this story together

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