P L D 1961 Dacca 263 (PLP)

CHOWDHURY, J.‑This appeal is by the plaintiffs in a suit for partition. The only point of law involved in this appeal and agitated before us is whether transposition of some of the defendants to the category of the plaintiffs is justified, and whether the learned Subordinate Judge was justified in dismissing the suit of the plaintiffs on the ground that transposition of some of the defendants to the category of plaintiffs is illegal holding that the suit at the instance of those transposed plaintiffs was not at all maintainable.

2. To understand the point involved in this appeal, a short statement of facts is necessary. Originally, one Parijan instituted the suit for partition as plaintiff, impleading, amongst others, defendants Nos. 12 and 13, who also prayed for a separate sham of their share in the properties. Subsequently, the plaintiff, Parijan, was not taking any interest in the prosecution of the suit. Realising this position, the defendants Nos. 12 and 13 filed an application for transferring them to the category of plaintiffs from that of defendants and to allow them to proceed with the suit for partition.

3. The trial Court allowed the application and transferred defendants Nos. 12 and 13 from the category of defendant to that of plaintiff after serving due notice on all the parties including the original plaintiff in the suit. Since then, defendants Nos. 12 and 13 became plaintiffs Nos. 2 and 3 in the suit. Subsequently, they filed an application for transferring plaintiff Parijan to the category of defendant The suit proceeded and culminated into a decree for partition of the properties and the trial Court passed the following orders In page 9 of the Paper Book "That the suit be decreed on contest with costs against defendants 1‑4 and ex pane against the rest in a preliminary form. A partition by metes and bounds of all the properties except schedule IV to the extent of 57/144th in plaintiffs' share be affected by a pleader commissioner. The benefit out of schedule IV shall go to the plaintiff's in proportion to their share in the property of Alep Khan."

4. Before us there is no dispute as to the line of succession and to the share claimed by the two transposed plaintiffs as well as the original plaintiff and other defendants. So we need not deal with that question.

5. On appeal by one of the defendants, namely, defendant No. 3, the learned subordinate Judge disposed of the appeal mainly on the decision of issue No. 1, at page 15 of the Paper Book, which runs as follows : "Is the suit maintainable in the present form 7 Ts the procedure adopted in the proceedings of the suit paper ?"

6. The learned Subordinate Judge decided this issue, at page 18 of the Paper Book, as follows :‑ "These plaintiff's as defendants could claim for separate saham for their share as defendants but they cannot in any view be allowed to sue as plaintiffs as has been allowed without showing that they have really some distinct cause of action for the suit. We can think of transposition of parties, but we cannot think of transposition of a W. S. as a plaint as has been done in this case. The suit of the present plaintiffs is not at all maintainable in the present form and the procedure of decreeing the suit in favour of the plaintiffs is not also proper." In coming to this decision, the learned Subordinate Judge, at page 17 of the Paper Book, made the following observations "This plaintiff (original plaintiff‑Parijan) it appears was not taking interest in the suit for some time past and she did not give any consent to her transposition ins the category of defendant. Then again there was no service of summons with the copy of plaint as it stood at the time of the order of transposition of defendant Parijan. She thus lost the chance of contesting the claim of the present plaintiffs who first became plaintiffs accepting the plaint filed by her and then twisted it according to the case set up in the written statement of defendant No:

12. Transposition of parties are allowed under certain circumstances to avoid multiplicity of suits and to adjudicate completely the question involved in a suit. But the procedure adopted in this case has completely changed things to such an extent that it should be characterised as absolutely injudicious. The manner and the procedure in which the suit has been decreed in favour of the plaintiffs cannot at all be countenanced." Against this decision, the present appeal has been filed by those defendants who were transposed to the category of the plaintiffs.

7. It is contended by Mr. Hakim, the learned Advocate for the appellants, that the learned Subordinate Judge totally misconceived the provision and scope of Order I Rule 10 of the Code of Civil Procedure and also of the inherent power of the Court under section 151 of the Code of Civil Procedure to transpose a party from one category to the other, for the ends of justice. We think that this contention of the learned Advocate is of substance, for reasons given below.

8. On the other hand, Mr. Achariyya, the learned advocate for defendant‑respondent No. 17 contends that it is no doubt true that transpositions of parties are allowed only in those cases where the interest of those defendants, who want to be transposed to the category of the plaintiff, is identical with that of the plaintiff' and if it is contradictory then the Court should not allow any transfer of any defendant from the category of the defendant to that of tee plaintiff". His second contention is that, at any rate, the Court has got no power to transfer a party from one category to tree other without the convent of that party. In support of this contention, Mr. Achariyya, the learned advocate for the respon?dent, has cited authorities. We must say to the credit of Mr. Achariyya that he frankly placed all the authorities available to him, before us, though some of them go counter to his contention and to that extent we must express our gratitude for the assistance we have got from Mr. Achariyya.

9. In the case of Nirode Chandra Banerjee v. Profulla Chandra Banerjee and others (40 C L J 535), relied on by Mr. Achariyya, the learned Advocate for the respondent, it has been held that the discretionary power of transferring of parties should be exercised in such a way as to achieve the ends of substantial justice. There the case was one for setting aside a putni sale in which the pro?forma defendants were co‑sharers of the plaintiff in the putni and were interested equally in setting aside the sale but in course of the continuance of the suit the plaintiff compromised with the auction purchaser admitting the sale and the suit was dismissed on compromise against those who were parties to the compromise and it was also dismissed against other defendants who were not parties to the compromise in spite of the fact that the proforma defendants prayed for being transferred to the category of the plaintiff from the category of defendant to enable them to continue the suit for setting aside the putni sale, which prayer was not allowed. On appeal by them, it was held though the suit was dismissed against them, they are entitled to file an appeal because the dismissal itself prejudicially affected their interest in the suit ; that the Court should have transferred them to the category of the plaintiff to enable them to continue the suit for setting aside the sale as the refusal to transform them to the category of the plain?tiff and to allow them to continue the suit prejudicially affected their interest, for the suit was formally dismissed against them and that for the ends of justice they should have been allowed to be transformed into the category of the plaintiff. This decision clearly shows that the power of the Court under order I. Rule 10 of the Code of Civil Procedure is a discretionary one and for the ends of justice should be exercised. In the present case if the suit is dismissed for laches of the plaintiff Parijan, it being a partition suit, that may not affect the interest of defendants Nos. 12 and 13 as they can file a separate suit for partition ; but that means to drive them to a separate suit, and it goes counter to the principle of avoiding multiplicity of suits. So, their prayer for transposition from the category of the defendant to that of the plaintiff is quite justified. Mr. Achariyya's contention is that he is not contending on that ground that the transposition was not proper, but his contention is that the interest of proforma defendants Nos. 12 and 13 is not identical with, that of the plaintiff Parijan, but certainly their interest is not counter to that of Parijan. It is not denied that like Parijan, these defendants Nos. 12 and 13 are entitled to get a share of the properties left by Alep Khan. Their interest may not be exactly identical, but it is similar as they also claimed to be co‑sharers by inheritance and such co‑sharers claim a separate saham of their share just like plaintiff Parijan. The case relied on by Mr. Achariyya does not say that for transposition of parties the interest should be identical. On the other hand, we find in the case of Brojendra Kumar Das and others v. Gobinda Mohan Das and others (20 C W N 752), where in a suit for dissolution of partnership and for accounts, the plaintiffs having received a large sum of money from some of the defendants, filed a compromise petition and asked for dismissal of the suit ; but the other defendants objected to the dismissal of the suit ; praying that they might be made plaintiffs and allowed to continue the suit and the plaintiffs, if necessary, might be made defendants. The Court held that it had ample powers under the new Civil Procedure Code to make transposition of parties and it ought to have done that and that the lower Court having failed to exercise the discretion vested in it under Order XXIII, Rule 3, failed to exercise a jurisdiction vested in it in refusing to make the transposition prayed for, and that order was liable to be set aside on revision by the High Court. In that case, the Subordinate Judge refused transposition holding that interest of those defendants, who want to be transposed to the category of the plaintiff' was adverse to that of the plaintiff and it will change the character of the suit. Similarly in the case of Debendra Narayan Singh v. Narendra Narayan Singh and others (30CLJ417), it has been held that Order I, Rule 10 of the Code of Civil Procedure authorises the Court to make an order for transfer of a party from the category of the defendant to that of the plaintiff at any stage of the proceeding and that the power of the Court depends on the question whether the case is subjudice and the Court has already been reluctant to place a narrow construction upon this provision of law, and to restrict the exercise of this discretionary power. These two cases have been relied on and referred to in the case of Nirode Chandra Banerjee v, Profulla Chandra Banerjee and others. Further, their Lordships of the Privy Council, in the case of Raja Bhupendra Narayan Sinha Bahadur v. Rajeswar Prosad Bhakat and others (53CLJ137), held that if there was a technical objection to the passing of a decree in the case, the Court had power at any stage of the proceeding to remedy the defect under Order I, Rule 10, of the Code of Civil Procedure, by, adding the proforma defendants as co‑plaintiffs with the appellant, and such a course should always be adopted where it is necessary for a complete adjudication upon the questions involved in the suit and to avoid multiplicity of proceedings.

10. Therefore, there is no doubt that a party can be trans?posed to the category of the plaintiff if the ends of justice require and the Court has got absolute power though it is a discretionary one to exercise that power where it is necessary for ends of justice and to avoid multiplicity of suits. In passing, I may point out that though in the case reported in 20 C. W. N. page 752,1 it is held that the Court was not bound to pass a decree under Order XXIII, Rule 3, of the Code of Civil Procedure and no appeal lies against the order of dismissal, in the case reported in 40 C. L. J. page 535 it has been distinctly held relying on the case of Krishna Chandra Goldar v. Mahesh Chandra Sahu (9 C W N 585) that even a defendant may appeal against a decree which nominally dismisses the suit against him but really prejudice his position. It has been further held relying on the case of Bradish v. Gee (I Kenyon, 73 ; 1 Ambler 229), Asad Reza v. Wahidunnessa (30 C L J 231), Biraj v. Chinta (5 C W N 877), and the case of Radha Kissen v. Gukhmi Chand (31 C L J 283), that the bar applies only when the appellant has, by himself or through counsel, consented in the trial Court to the decree he seeks to impeach before the superior tribunal. Accordingly, it was held in the case, to the following effect : "When a compromise decree has been made between some of the parties to a suit, the other parties who have not assented to the compromise are entitled to appeal against the decree, provided they have been prejudicially affected thereby."

11. As to the next contention of Mr. Achariyya, the learned advocate for the respondent, that no party can be transferred from one category to the other without his consent, we may simply point out that there is no such restriction imposed on the Court in the provision of Order I, Rule 10, of the Code of Civil Procedure. The power given to, the Court is irrespective of the consent or want of consent and that is the view what, we feel, was taken in the Privy Council case cited above, namely, the case reported in 53 C L J page

137. We find, therefore, there is no substance in the contention of Mr. Achariyya, on the point of transposition of parties and on that point the judgment and decree of the lower Appellate Court must be set aside. We entirely agree with the learned Subordinate Judge that the suit is not bad for defect of any party or for non‑inclusion of any ejmali property ; but we cannot agree with him that the plaintiffs failed to prove possession, actual or constructive, in any portion of the land and the suit is not maintainable without a prayer for declara?tion of plaintiffs' title to the disputed property. As it appears from the judgment of the learned Subordinate Judge that when he has made up his mind that the suit at the instance of defendants Nos. 12 and 13, having been transposed to the category of the plaintiffs, was not maintainable, he has not seriously considered the question of possession actual and constructive and wrongly held that the suit is 'not maintainable without a prayer for declaration of title to the disputed property, it is not disputed that the property belonged to the common ancestor of the plaintiff and the defendants and when the title of defendants Nos. 12 and 13 was not denied, rather admitted by impleading then party defendant and claiming partition with them. The learned Subordinate Judge further held that the suit of the plaintiffs (transformed plaintiffs) was not maintainable without proper Court‑fees as they are not in possession of the disputed property. Now, the admitted fact that defendants Nos. 12 and 13, who were impleaded as party‑defendants in the partition suit, shows that they have got a share in the property as heirs of the common ancestor‑Alep Khan and as we have already found that the question of possession has not been satisfactorily dealt with by the learned Subordinate Judge, it cannot be said that the suit is not maintainable without payment of ad valorem Court‑fees with a prayer for declaration of plaintiffs' title. This question of possession, we think, should be considered afresh in view of our finding that the suit is maintainable by the defendants No. 12 and 13, who have been transformed into the category of plaintiffs ; and on a fresh consideration on the question of possession constructive or actual‑if it is found that they are out of possession and the suit is not maintainable without payment of ad valorem Court‑fees, the Court cannot straightway dismiss the suit without giving the plaintiff an opportunity to put in Court?-fees under section 149 of the Code of Civil Procedure.

12. The result, therefore, is that this appeal is allowed, the judgment and decree of the lower appellate Court are set aside and the case is remanded to the lower appellate Court to dispose of the appeal according to law, on the evidence already on record and in the light of the observations made above. Costs of this appeal will abide the result. SATTAR, J.‑I agree. K. B. A.?????????? Appeal accepted: Case remanded.