The High Court of Bombay (“High Court”), by a judgment pronounced on March 20, 2023, in the matter of Sou. Nalini @ Madhavi Madhukar Murkute v. Shri Deepak Manohar Gaikwad and Others [Writ Petition No. 10012 of 2019] (“Petition”), has held that a defendant whose interest is not identical with the plaintiff, cannot be permitted to be transposed as plaintiff in case of part abandonment of suit claim by the plaintiff.

Facts

The Petition under Article 226 (Power of High Courts to issue certain writs) and Article 227 (Power of superintendence over all courts by the High Court) of the Constitution of India, was filed by Sou. Nalini @ Madhavi Madhukar Murkute (“Plaintiff/ Petitioner”) in special civil suit no. 2375 of 2011 (“Suit”), challenging an order dated June 6, 2019 passed by the Joint Civil Judge, Senior Division, Pune in an application filed under Order 23 Rule 1A of the Civil Procedure Code, 1908 (“CPC”). By the said order, the application came to be allowed permitting Supriya Dilip Gaikwad (“Defendant No. 6/ Respondent”) who is the sister of the Plaintiff to be transposed as plaintiff in the Suit.

The Suit was filed by the Plaintiff seeking partition and separate possession in respect of various Suit properties. In the Suit, in respect of a portion of the Suit properties, it was alleged that the Defendant No. 6 executed a release deed and power of attorney in favour of her brothers, Deepak Manohar Gaikwad (“Defendant No. 1”) and Shrikant Dilip Gaikwad (“Defendant No. 3”) and based on those documents, the Defendant Nos. 1 and 3 executed certain documents in favour of the developer (“Defendant No. 7”) for grant of development rights. The Defendant No. 6 filed her written statement, claiming equal right and share in the Suit properties along with the Plaintiff and in that way, supporting the claim of the Plaintiff. It was further pleaded by Defendant No. 6 that her signatures were taken on blank papers and she was taken to a government office under undue influence and with a misrepresentation that certain documents were required to be executed for entering the names of all the heirs to the ancestral property. Further, she contended that her signatures were misused to create false and fabricated documents.

The trial court granted interim injunction in respect of few of the Suit properties against Defendant Nos. 1 to 7, against which order, appeals were filed by the Defendant No. 7, Plaintiff and Defendant Nos.1 to 5. In those appeals, Plaintiff and Defendant Nos. 1 to 5 and Defendant No. 7 entered into a compromise. It is the case of the Plaintiff that during that compromise, Defendant Nos. 1 & 3 acted as power of attorney holder of Defendant No. 6. The said compromise recorded that interim injunction would not apply to the said portion of suit property. Accordingly, the Plaintiff undertook to withdraw the said suit in respect of the said portion of suit property and to hand over vacant and peaceful possession thereof to Defendant No. 7 for joint development. Defendant No. 7 was permitted to delete Defendant No. 6 at his own risk from his appeal from order.

Defendant No. 6 filed a review petition and challenged the said compromise, which according to her was executed behind her back. The review petition was disposed of with a clarification that the said order recording compromise would not be binding on Defendant No.6 and would not come in her way of agitating her rights in the suit properties.

Thereafter the Defendant No. 6 filed the application in the Suit, seeking transposition as Plaintiff in the Suit. It was opposed by the Plaintiff contending inter alia that Defendant No. 6 was trying to get a declaration in respect of the registered release deed, which relief was time barred. It was contended that whatever share the Defendant No. 6 was entitled to, would be determined by the Court in the partition Suit and as such, there was no need for her transposition. The application was allowed on June 6, 2019 by the trial court against which, the Petition came to be filed.

Issue

Whether a defendant whose interest is not identical with the plaintiff, can be permitted to be transposed as plaintiff in case of part abandonment of suit claim by the plaintiff.

Arguments

Contentions raised by the Petitioner:
It was contended by the Petitioner that the Defendant No. 6 was transposed in the Suit when there was conflict of interest in respect of some of the Suit properties. The interests of the Plaintiff and Defendant No. 6 were not identical and hence, transposition could not have been allowed.

It was urged that the provision of Order 23 Rule 1A of CPC was not applied in its proper perspective to the facts of the case. Here the interests of the parties were distinct as the Petitioner was not interested in the portion of the Suit property in which the Defendant No. 6 was interested, in respect of which portion, the Defendant No. 6 could continue with the dispute. Inasmuch as the portion of the Suit properties in which the Petitioner was concerned, there was no dispute, as the parties had entered into a compromise in respect thereof. Defendant No. 6, therefore, could pursue her claim against the rest of the defendants by way of a separate proceeding where various issues, including the issue of limitation could be decided. The Petitioner was not required to be a party to the said proceeding. Hence, there was a misjoinder of cause of action and misjoinder of parties, in allowing the Defendant No. 6 to be transposed as a Plaintiff in the Suit. It was therefore, urged that the impugned order be set aside.

The Petitioner relied upon the judgment of Kashibai Waman Patil (D) Through L.Rs. v. Shri Taukir Ahmed Mohammed Hanif Khan and Others [2015(6) All MR 340] (“Kashibai Case”) to buttress her arguments.

Contentions raised by the Respondent:
The Respondent contended that the compromise in the appeal was entered into behind her back and as such she has no option but to file the application for her transposition as a Plaintiff.

It was further pointed out that the Hon’ble court while disposing off the review petition filed by the Respondent, wherein, it was specifically recorded that the compromise would not be binding on the Respondent with respect to a portion of the Suit property in which she is interested. This was on the premise that Respondent was not present while the compromise was entered into. It was thus, clarified, that the compromise would not come in the way of the Respondent to agitate her right in the Suit properties, including the disputed portion.

It was argued that the ingredients of Order 23 Rule 1A of CPC were satisfied and the only way to protect the interest of the Respondent in the Suit was to transpose her in the Suit. Order 23 Rule 1A of CPC makes a reference to ‘withdrawal or abandonment of suit by Plaintiff under Rule 1’ and hence, even in case of partial withdrawal of the Suit or part abandonment of Suit, the rule would apply and transposition could be ordered.

It was lastly urged that if the Respondent was not allowed to be transposed to prosecute the Suit, her interests would be compromised forever. Therefore, it was urged that the impugned order be not interfered with. In support of her argument, the Respondent relied upon the judgment of R. Dhanasundari alias R. Rajeswari v. A.N. Umakanth and Others [(2020) 14 SCC 1] (“R. Dhanasundari Case”).

On the other hand, it was argued by the Defendant No. 7 that the Plaintiff had given up her dispute in respect of the portion of the Suit property which was taken by the Defendant No. 7 for development from the brothers of Defendant No. 6 acting for themselves and on behalf of the Defendant No. 6. Thus, there was conflict of interest between the Plaintiff and Defendant No. 6. Hence, the Defendant No. 6 could not be transposed as the Plaintiff. It was further agitated, that Defendant No. 6 was attempting to dispute a registered document, which claim was ex-facie time barred. Hence, Defendant no. 6 ought to file a separate suit to be decided on its own merits.

Observations of the High Court

The High Court observed that the Suit was filed by one sister against two brothers, their wives, mother and remaining sister, along with third parties, purchasers, etc., seeking partition of the Suit properties. Later, the Plaintiff and her brothers along with the mother and the developer had chosen to compromise and to let go their dispute about the portion of the Suit property in which rights of development were given to the developer. The same was evident from the undertaking submitted by the Plaintiff, where she agreed to withdraw the Suit in respect of the said portion given to the developer. It was further agreed that the interim injunction granted by the trial court would not operate in respect of the said portion of the property.

In respect of the very same portion of the Suit property, the Defendant No. 6 has made serious allegations of her signatures being taken on blank paper on misrepresentation and undue influence and dispute as to the transfer in favour of the developer. These are separate and distinct causes of action to Defendant No. 6. The Court further went on to observe that, with such diametrically opposite interests claimed by Defendant No. 6 on one hand and the Plaintiff, it was impossible to accept that the interest of Defendant No. 6 was identical with the interest of the Plaintiff.

The High Court took note of the provision of Order 23 Rule 1A of the CPC, which when read in light of paragraphs 12 and 13 of the judgment of R. Dhanasundari Case would make it clear that because the interest of the existing Plaintiff as also Defendant Nos. 3 to 6 in that matter was found as “one and the same” against contesting Defendant Nos.1 and 2 therein, the transposition order under Order 23 Rule 1A of CPC was sustained. Therefore, the touch-stone was “one-ness of interest”. The other difference in the facts of the present case was that, unlike R. Dhanasundari Case, in the present case, the Petitioner has not fully abandoned her claim.

The High Court went ahead to further differentiate between the facts of the present case and the facts in the judgment of Kashibai Case and in Jethiben v. Maniben [AIR 1983 Guj 194] and once again came to the conclusion that the said judgments would not support the case of the Defendant No. 6 as her interest was not identical to the interest of the Plaintiff.

In view of the aforesaid discussion, the High Court held that transposition of a defendant can be permitted in case of part abandonment of the claim by the plaintiff, if the defendant seeking transposition has identical interest with the plaintiff vis-à-vis both contesting defendants and subject matter property. If there is a conflict of interest between plaintiff and defendant seeking transposition, in respect of even one defendant or in respect of even one of the suit property, then transposition of such defendant cannot be permitted.

The reason is that if a Defendant not having identical interest with the plaintiff in the suit is permitted to be transposed in a suit, then it would virtually mean that there will be more than one set of causes being permitted amongst parties in one suit and that will be clearly a mis-joinder of cause of action or a mis-joinder of parties or both. The High Court held that it would be anomalous to allow suit to proceed where one plaintiff wants to let go its dispute against some of the defendants in respect of some of the suit property and at the same time, defendant seeking transposition wants to proceed in respect of same subject property against the same set of defendants.

Finally, the High Court highlighted the flaws in the impugned order by observing that the trial judge had over-looked the key aspect of one-ness of interest amongst Plaintiff and Defendant No. 6 and merely, proceeded on the apprehension of the Defendant No. 6 not being baseless as to the withdrawal of the Suit. Further, the trial judge had wrongly proceeded on the footing that the conduct of the Plaintiff compromising part of the Suit claim with the Defendant Nos. 5 and 7 and filing application for deletion of Defendant No. 7 meant that the Plaintiff was going to withdraw the whole Suit.

Decision of the High Court

In view of the above-mentioned observations, the High Court allowed the Petition by setting aside the impugned order by holding that transposition of a defendant could be permitted in case of part abandonment of the claim by the Plaintiff, provided the defendant seeking transposition has identical interest with the plaintiff vis-à-vis both, contesting defendants and subject matter property. Defendant No. 6 was given liberty to adopt appropriate proceedings for her grievances and claims in respect of the suit properties, including the portion in dispute.

VA View:

By way of the present judgment, the High Court has clarified the position that a defendant cannot be allowed to be transposed as a plaintiff in a Suit where the defendant has failed to establish one-ness of the cause of action and the interest/claim with the plaintiff, against the other defendants.

The same would be applicable even in cases, which are partly withdrawn or abandoned by the Plaintiff, so as to avoid the anomaly of different causes of action and/or different claims being pursued by different parties, in the capacity of plaintiff, against the defendants in the same Suit. If the contrary is allowed, it would lead to actions which are liable to be brought about in separate suits/proceedings being taken in the same suit, further leading to irrational outcomes.

For any query, please write to Mr. Bomi Daruwala at [email protected]

DOWNLOAD NEWSLETTER