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TMI Blog2019 (3) TMI 2036X X X X Extracts X X X X X X X X Extracts X X X X ..... e original plaintiff asserting his ownership over the property in question. After the demise of original plaintiff, his sons and daughters came to be joined as plaintiff Nos. 2 to 8 with plaintiff No. 5 being the power of attorney holder of all the plaintiffs. After the suit was decreed ex parte, the plaintiff No. 5 transferred the property in question to the aforesaid three purchasers, who were joined as plaintiff Nos. 9 to 11 when the ex parte decree was set aside and suit was restored for bi parte hearing. In the given status of parties and the subject matter of the suit, when the plaintiffs entered into an arrangement with defendant Nos. 1 and 2 and sought permission to withdraw under Order XXIII Rule 1 CPC, the right of defendant Nos. 3 to 6 to continue with the litigation on their claim against defendant Nos. 1 and 2 immediately sprang up and they were, obviously, entitled to seek transposition as plaintiffs under Order XXIII Rule 1-A CPC. It is also noteworthy that even if some question is sought to be raised as regards the rights of the subsequent purchasers (defendant Nos. 4 to 6), the right of the defendant No. 3 (earlier the plaintiff No. 5) to prosecute the suit a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vested with the plaintiff A.C. Nataraja Mudaliar. It was alleged that the defendant No. 1 A.V. Manoharan, despite having relinquished the rights in the suit property, sold the same to the defendant No. 2 under the impugned sale deed dated 23.03.1985. (c) During pendency of this suit, the original plaintiff A.C. Nataraja Mudaliar expired on 19.05.1988 leaving behind 3 sons and 4 daughters as his legal representatives, who were impleaded as plaintiff Nos. 2 to 8 in the suit. One of the sons of the original plaintiff namely, A. N. Umakanth (plaintiff No. 5- respondent No. 1 herein) was extended power of attorney by his siblings. (d) The suit was decreed ex parte in the year 1995 but later on, the ex parte decree was set aside and the suit was restored to the original number. However, in the interregnum, the respondent No. 1 A. N. Umakanth, the power of attorney holder of all the legal representatives of the original plaintiff, sold the suit property to three persons, namely Ramasamy, Dhanam Ramasamy and Venkatasubramanian (respondent Nos. 2 to 4 herein) through a registered sale deed dated 04.07.1995. In view of this transaction, upon restoration of the suit, the said purchasers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ff Nos. 2 to 5 in this suit. 3. The said application for transposition (IA No. 153 of 2005) came to be allowed by the Trial Court by its impugned order dated 07.07.2005 with the following observations:- Upon perusing the petition, counter it reveals that the original suit was filed in the year 1989. Originally the petitioner has filed the above suit as a Power of Attorney agent of plaintiffs. When the power was in force, the power given to the petitioner was cancelled. When the power was inforce, the petitioner sold most of the suit item. The purchasers moved an application to implead themselves as plaintiffs in the above suit and the same was allowed. Later the plaintiffs have filed application to transpose the plaintiffs 5, 9 to 11 as defendants and the same was allowed. Later the trial commenced and the plaintiff witness had been examined. On the side of defendants 3 witnesses were examined. The cross- examination of 2nd defendant s husband has been deferred. At this stage the plaintiff and the 2nd defendant entered into compromise and filed a memo stating that the suit is not pressed as settled out of court. The petitioner sold the property while the power of attorney w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it of the defendants 3 to 6. Therefore, the defendants 3 to 6 can be said to have an identity of interest with the plaintiffs. 17. Under such circumstances, I am of the view that the Trial Court was right in ordering the transposition of the defendants 3 to 6 as plaintiffs. Therefore, I find no merits in the Civil Revision and the Civil Revision Petition is dismissed. No costs. The connected CMP VCMP are closed. 5. Assailing the order aforesaid, learned counsel for the appellant (defendant No. 2) has strenuously argued that the transaction concerning defendant Nos. 3 to 6 having taken place much after the institution of the suit, these defendants have no cause of action against defendant Nos. 1 and 2 and hence, they cannot be transposed as plaintiffs; that the right of the dominus litus plaintiffs to withdraw the suit under Order XXIII Rule 1 CPC cannot be curtailed, especially when they do not seek any liberty to file a fresh suit; and that the subsequent purchasers have no legal right to seek cancellation of the sale deed which was executed in favour of the appellant way back in the year 1985. These submissions are supported on behalf of the respondent Nos. 6 8 to 11 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt effectually and completely to adjudicate upon and settle all the questions involved in the suit be added. 8.1 On the other hand, the law of procedure in relation to withdrawal and adjustment of suits is contained in Order XXIII of Code of Civil Procedure. As per Rule 1 thereof, a plaintiff may seek permission for withdrawal of suit or abandonment of a part of claim. Rule 1-A thereof 1 deals with an eventuality where the plaintiff withdraws his suit or abandons his claim but a pro forma defendant has a substantial question to be decided against the co-defendant. This Rule 1-A of Order XXIII CPC reads as under:- R.1-A. When transposition of defendants as plaintiff may be permitted.- Where a suit is withdrawn or abandoned by a plaintiff under Rule 1, and a defendant applies to be transposed as a plaintiff under Rule 10 of Order 1, the Court, shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants. 9. It remains trite that the object of Rule 10 of Order I CPC is essentially to bring on record all the persons who are parties to the dispute relating to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iffs. After the suit was decreed ex parte, the plaintiff No. 5 transferred the property in question to the aforesaid three purchasers, who were joined as plaintiff Nos. 9 to 11 when the ex parte decree was set aside and suit was restored for bi parte hearing. In the given status of parties, even if the plaintiff Nos. 5 and 9 to 11 were later on transposed as defendant Nos. 3 to 6, the suit remained essentially against the defendant Nos. 1 and 2, that is, in challenge to the sale deed dated 23.03.1985, as executed by the defendant No. 1 in favour of the defendant No. 2. In regard to this cause, even if plaintiff Nos. 5 and 9 to 11 came to be transposed as defendant Nos. 3 to 6, their claim against defendant Nos. 1 and 2 did not come to an end; rather, the interest of the existing plaintiffs as also the defendant Nos. 3 to 6 had been one and the same as against the defendant Nos. 1 and 2. 12. In the given status of parties and the subject matter of the suit, when the plaintiffs entered into an arrangement with defendant Nos. 1 and 2 and sought permission to withdraw under Order XXIII Rule 1 CPC, the right of defendant Nos. 3 to 6 to continue with the litigation on their claim agai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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