P L D 1962 (W (PLP)

Date of hearing: 16th November 1961. This is a revision against the order of Civil Judge 1st Class, Lahore, dated the 3rd of October 1961, by which Abdul Waheed petitioner, who was a plaintiff in a suit, has been ordered to be transposed as a defendant.

2. On the 21st of January 1954, Mian Abdul Waheed petitioner along with his two sisters Mst. Amtul Hamid and Mst. Amtul Rehman filed a suit against Abdul Kabir their brother as the sole defendant. Later on, Maqbool Ahmad and Mst. Mahmooda Begum were also joined as co‑defendants. The relief claimed in the suit was the administration of the property left by Hafiz Abdul Aziz, the father of the plaintiffs and defendant No. 1. in para. No. 5 of the plaint the petitioner as plaintiff No. 1, claimed for his appointment as Mutawalli of some wakf property. Defendant No. 1 in his written statement took up the plea that under the will of Hafiz Abdul Aziz dated the 18th of April 1927, the property was wakf-alal‑aulad and he was the manager appointed under the will. In the replication filed by the plaintiffs, the initial claim in the plaint was supported and it was further pleaded that the will of 1927 had been superseded by means of another will dated the 21st of June 1937, which was further amended on the 25th of May 1939. The proceedings in this suit continued and the parties led their evidence.

3. On the 5th of July 1961, the statement of Mian Abdul Waheed plaintiff No. 1 was recorded as plaintiffs' witness. In this statement he supported defendant No. 1 In so far that he stated that the 1927 will was the only will made by Hafiz Abdul Aziz and he expressed his doubt about the will of 1937 and its amendment in 1939. On the 19th of July 1961, plaintiffs No. 2 and 3 applied under section 151 and Order 1, rule 10, C. P. C., that the plaintiff No. 1 should be transposed as a defendant. They further prayed that the statement of the plaintiff be expunged and, in the alternative, it was prayed that the two plaintiffs should be given an opportunity to cross‑examine him. The trial Judge has refused to expunge the statement, but he ordered the transposition of Mian Abdul Waheed plaintiff -petitioner as defendant in the suit. It has also been conceded that the plaintiffs have a right to cross‑examine him. Mian Abdul Waheed in this revision petition takes exception to the order of the trial Judge in so far as his transposition has been ordered.

4. The learned counsel for the petitioner contends that he has not given up his claim so far as it related to his appointment as a manager to the waqf property. Without giving a final opinion on this point I would, however, remark that the petitioner in his statement did not reiterate his claim for appointment as a Mutawalli. The statement made by the petitioner is clearly in accordance with the case as set up by defendant No. 1 and consequently his continuance as a plaintiff in the case, is no longer proper. The powers of the Courts under Order I rule 10 are unfettered and this discretionary power may be exercised by the Courts at any stage. The general rule is that when the plaintiffs do not agree between themselves, the only course open is to transpose such a disagreeing plaintiff to the category of the defendants. In the present case, the petitioner has identified himself with defendant No. 1 and in these circum stances the lower Court was justified in ordering his transposition as a defendant. If the petitioner is serious about his appointment as a Mutawalli to the waqf property, he can still be given that relief as a defendant as against his co‑defendant. The plaintiffs No. 2 and 3 did not claim this relief as against the defendants. The learned counsel for the petitioner has cited Pravat Chandra Giri v. Amulya Chandra Bahaduri and others (A I R 1927 Cal. 340) and Badhaballabh Prasad Narain Singh v. Raghunath Lal and others (A I R 1939 Pat. 397) in support of his contention that the transposition of the petitioner had been wrongly ordered by the lower Court. The Calcutta ruling has no application to the facts of this case. In this authority, it is laid down that "a third party ought not to be made a party to a suit for rent so as to convert a simple suit for arrears of rent into one for the determination of the title to the property in respect of which the rent is claimed." Similarly, the Patna ruling does not help the petitioner in a way rather it goes against the petitioner because it has been laid down that the power under Order I, rule 10 is discretionary and its use will depend upon the circumstances of a particular case. The learned counsel has failed to show as to how fn the circumstances of the present case the order passed by the lower Court in its discretion was unwarranted or without jurisdiction so as to merit interference in revision. The learned counsel for the respondents has cited Padma Lochan Pal v. Kali Kamal Pal and others (A I R 1925 Cal. 328), Dadabhai Framji Cama v. Cowasji Dorabji Panday and others (A I R 1923 Bom. 177) and Fayez Ahmad and others v. Kunehama Khatun and others (P L D 1961 Dacca 263). All these cases have been decided on their particular facts and none of them is a case on all fours with the present case. On going through these cases one thing is clear that whenever the ends of justice require, the Court has power to order the transposition and this power can be exercised irrespective of the consent of the party. In fact it would be wrong to permit a plaintiff to continue as such when he takes up a completely hostile attitude to the other plaintiffs and takes upon himself to support the case of the defendant.

5. In view of all these circumstances I consider that the order of transposition of the petitioner has been properly passed and no case is made out to merit interference in revision. The petition is, therefore, dismissed with costs. S. B. Petition dismissed.