Madaka Anjaneyulu vs Madaka Balaiah And Others on 4 December, 2000

Andhra High Court

Madaka Anjaneyulu vs Madaka Balaiah And Others on 4 December, 2000
Equivalent citations: 2001 (1) ALD 312, 2001 (1) ALT 172
Bench: V Rao
JUDGMENT

1. This appeal is filed against the judgment and decree in OS No.33 of 1991 on the file of the Court of
the Senior Civil Judge, Cuddapah. The appellant is the third defendant. While the appeal is pending,
he filed an application being CMP No.12743 of 2000 praying this Court to dismiss the appeal as not
pressed. In the affidavit accompanying the CMP, he stated that due to personal reasons, the
appellant does not want to prosecute the appeal.

2. The second respondent herein who is the first defendant in OS No.33 of 1991 filed CMP No.12986
of 2000 under Order 23, Rule 1-A read with Section 151 of the Code of Civil Procedure, 1908 ('CPC'
for brevity) praying this Court to transpose him as appellant in the place of the original appellant.
When CMP No.12743 of 2000 filed by the appellant came up before me, the learned Counsel for the
second respondent/first defendant objected for dismissing the appeal as not pressed and requested
that the application filed by the second respondent being CMP No. 12986 of 2000 may be taken up
for hearing and disposal. Accordingly, I have heard the learned Counsel for the second respondent.

3. The appellant in this appeal had filed OS No.117 of 1991 on the file of the Court of the Senior Civil
Judge, Cuddapah for declaration of title in respect of the suit A schedule property and for mesne
profits. His brother Madaka Balaiah who is the first defendant in OS No.117 of 1991 filed OS No.33
of 1991 before the same Court for partition of suit schedule property into four shares and allotting
one such share to him. In the suit filed by the appellant herein, besides Madaka Balaiah, Madaka
Narayana and Madaka Ramana, the other brothers of the appellant are the defendants.

In the suit filed by Madaka Balaiah being OS No.33 of 1991, Madaka Ramana, Madaka Narayana
and the appellant herein arc the defendants. The suit filed by the appellant being OS No.117 of 1991
for declaration of title was dismissed and the suit filed by Madaka Balaiah being OS No.33 of 1991
was decreed declaring that the plaintiff (Balaiah) and other three defendants are entitled to l/4th
share each in the suit schedule property. The trial Court passed a common judgment dated 4-2-1998
in OS Nos.33 and 117 of 1991.

4. Aggrieved by the judgment and decree in OS No.117 of 1991, the appellant herein filed AS No.1895
of 1998. Later, the said 'appeal suit' was dismissed as withdrawn on 21-8-2000.

5. This appeal being AS No.821 of 1998, as stated earlier, is against the judgment and decree in OS
No.33 of 1991 by Madaka Anjaneyulu who is the third defendant, who has also filed OS No.117 of
1991. As already noticed, in OS No.33 of 1991, Madaka Ramana, Madaka Narayana and Madaka
Anjeyulu (appellant herein) are the defendants. One of the defendants has filed the appeal and now
he filed a CMP praying to dismiss the appeal as not pressed.

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 Madaka Anjaneyulu vs Madaka Balaiah And Others on 4 December, 2000

6. The second respondent/first defendant opposed withdrawal of appeal. He states that when the
appeal was filed, passing of the final decree was stayed, Madaka Balaiah who is in possession of the
property is resorting to acts of waste to his detriment and that he filed CMP No.16612 of 1999 for
appointment of a receiver which was ordered, whereupon the receiver has taken possession of the
suit land and auctioned the same for the present year. If the CMP filed by the appellant is allowed,
the rights and interest of the second respondent would be affected and the application for
dismissing the appeal is filed in collusion with other respondents to deprive the second respondent
of his legitimate claim. Therefore, the second respondent prays to transpose him as appellant and
complete adjudication of all questions involved in the suit so as to avoid multiplicity of proceedings.

7. The point for consideration is whether the second respondent/first defendant is entitled to file an
application under Order 23, Rule 1A of CPC.

8. As per Rule 1 of Order 23 of CPC, plaintiff is entitled to withdraw his suit or abandon part of the
claim at any time after the institution of the suit. As held by this Court in Hulas Rai v. K.B.Bass and
Company, , under Order 23, Rule 1(1) of CPC a plaintiff has got unqualified right to withdraw the
suit and that there is no provision in CPC which enables the Court to refuse permission to withdraw
the suit and compel the plaintiff to proceed with it. Under Rule 2, the Court may give liberty to the
plaintiff to institute of fresh suit in respect of the subject-matter of the suit if the suit suffers from
formal defect or there are sufficient grounds for allowing the plaintiff to institute a fresh suit at a
later point of time. As per Rule 44, the Court shall not permit one of the several plaintiffs to
withdraw the suit without the consent of other plaintiffs. Rule 1-A of Order 23 enables a "defendant"
to be transposed as "plaintiffs under Order 1, Rule 10 where a suit is withdrawn or abandoned by the
plaintiff under Rule 1 of Order 23. While considering the application filed by the defendant "to be
transposed as plaintiff", the Court shall have due regard to the question whether the defendant has a
substantial question to be decided against any of the other defendants. Rule 1-A of Order 23 of CPC
reads are under.

"Where a suit is withdrawn or abandoned by a plaintiff under Rule 1, and 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. The rule enables a defendant apply for transposition as plaintiff under Order 1, Rule 10. Having
regard to the substantial question to be decided as against any of the other defendants, the Court
may permit the defendant to be transposed as plaintiff when the plaintiff withdraws or abandons the
suit. If one of the defendants, aggrieved by the judgment and decree in a suit prefers an appeal
under Section 96 read with Order 41 CPC, if the defendant/ appellant at a later point of time desires
to withdraw or abandon the appeal, Order 23, Rule 1-A has no application. This is clear from the
plain language of Rule 1A of Order 23. Further, the Rule in question enables the defendant to be
transposed as plaintiff under Order 1, Rule 10. Sub-rule (1) of Rule 10 of Order 1 empowers the
Court at any stage of the suit to order any other person to be substituted or added as plaintiff where
the suit has been instituted in the name of a wrong person as plaintiff or where it is doubtful
whether it has been instituted in the name of the right plaintiff.

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 Madaka Anjaneyulu vs Madaka Balaiah And Others on 4 December, 2000

10. A reading of Order 23, Rule 1A and Order 1, Rule 10 (1) CPC makes it clear that a
respondent/defendant in appeal suit filed by co-defendant is not entitled to come on record as
plaintiff. This is also clear from the provisions of Rule 4 of Order 41. The said Rule is to the effect
that where there are more defendants than one in a suit, and the decree appealed from proceeds on
any ground common to all the defendants, any one of the defendants may appeal from the whole
decree, and thereupon the appellate Court may reverse or vary the decree in favour of all the
defendants. Being the first defendant in OS No.33 of 1991, the petitioner in CMP No. 12986 of 2000
is always entitled to file an appeal against the judgment and decree. Having not done so, under Rule
4 of Order 41, he is bound by any order passed by the appellate Court. The effect of dismissing the
appeal as not pressed, as rightly contended by Sri Govind Reddy, learned Counsel for the second
respondent/ first defendant would be that the preliminary decree passed by the trial Court would
become final and further proceedings would be taken up. In my considered opinion, that itself
cannot be a reason for transposing as appellant who is none other than co-defendant whose interest
in subject-matter of suit is not akin to the interest of plaintiff. The appellant herein being the third
defendant, if the application of the first defendant is allowed, it would work adverse to the interest of
the appellant who admittedly got a share in the property and, therefore, the first defendant cannot
be permitted to be transposed as appellant in the appeal filed by the third defendant.

11. In Jethiben v. Maniben, , the Gujarat High Court considered the scope of Rule 1A of Order 23. It
was held that Order 23, Rule 1A is intended to transpose defendant as plaintiff only if defendant has
interest identical with the interest of plaintiff. Otherwise, Order 23, Rule 1A is not applicable. It is
intended not to defeat the claim of pro forma defendant who has identical interest with plaintiff and
whose interest is likely to be defeated by plaintiff by abandoning or withdrawing the suit in
accordance with Rule 1 of Order 23. The intention is to avoid multiplicity of proceedings at the
instance of pro forma defendant who has identical claim vis-a-vis plaintiff. In the context, the
learned Judge of the Gujarat High Court observed as under :

"Courts even without this provision have considered as to what would be the position when a
plaintiff attempts to withdraw the suit on the rights of all other pro forma plaintiffs or pro forma
defendants or defendants who have a cause of action identical to that of the plaintiff. In order to
make a clear provision, this provision was added, though it was also considered on the same lines
earlier irrespective of this provision. So, the normal consideration for transposition that interest of
the person to be transposed as plaintiff must be identical to the interest of the plaintiff who tries to
withdraw would not go away."

12. The Gujarat High Court also observed that though Courts lean against multiplicity of suits,
transposition just to give a chance to litigants to avoid filing a suit or permit him to take advantage
of the suit filed by his adversary against him claiming a relief against him by becoming a plaintiff
and trying to bring out the averments and reliefs which are contrary to those claimed by the original
plaintiff is not permissible. It was also held that if the interest of the pro forma defendant to be
transposed as plaintiff is adverse, such a recourse should not be permitted by the Courts.

13. The learned Counsel for the second respondent placed reliance on a judgment of Patna High
Court in Md. Muzahid v. John Wilson Zedak, , and submits that the second respondent who has

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 Madaka Anjaneyulu vs Madaka Balaiah And Others on 4 December, 2000

interest in the property claimed by the appellant can always be transposed as plaintiff. In Muzahid's
case (supra), the suit was filed for specific performance. Pending the suit Md. Muzahid obtained sale
deed from the owner and as the agreement holder refused to vacate the property, he filed a suit for
eviction. After this he filed a suit for adding him as defendant in the suit filed by the agreement
holder and the same was allowed. After completion of the trial, the plaintiff who sued the original
owner (vendor of Md. Muzahid) filed application for withdrawing the suit for specific performance
of agreement of sale "as defendant No.1 registered sale deed in his favour." Md. Muzahid who was
defendant No.2 and who also obtained sale deed objected for withdrawal of the suit and prayed that
he be transposed as plaintiff. The trial Court allowed withdrawal of the suit refusing transposition of
Muzahid as plaintiff. Placing reliance on Order 23, Rule 1(1) and Rule 1-A CPC, the Patna High
Court ordered that Muzahid be transposed as plaintiff in the suit for specific performance. The
Court held that after Act No.104 of 1976, when there is inter se dispute among the defendants,
transposing a defendant as plaintiff is permissible under Rule 1-A of Order 23 if there is a
substantial question to be decided between the defendants. The contra view taken by the Gujarat
High Court in Jethiben's case (supra) was not agreed to by the Patna High Court.

14. With great respect, I am not able to agree with the view taken by the Patna High Court (Ranchi
Bench) and I respectfully agree with the enunciation of law by the Gujarat High Court in Jitheben's
case.

15. In Jagabandhu v. Haris Chandra, AIR 1922 Cal. 459, the Calcutta High Court also took a similar
view that if defendant's application for transposition as plaintiffs was accepted, it would have been
necessary for the added plaintiffs to discard the entire evidence on record and succeed on a case
which not only was made in the Court of first instance, but absolutely contradictory to the evidence
put forward. In the present case on hand, the plaintiff in OS No.33 of 1991 claimed partition which
was disputed by the first defendant (second respondent) who claimed the entire property as
belonging to him. When" the suit was decreed for partition, the second respondent ought to have
filed a separate appeal because he is claiming the entire property for himself and he is opposing the
claim of the plaintiff as well as defendants 2 and 3. Having not done so, in this case, he cannot seek
to be transposed as appellant as the appellant's (third defendant) interest was certainly adverse (o
the interest of the first defendant. The decision of the Madras High Court in Ramaswami v.
Deivasigamanti, AIR 1947 Madras 395, is also to the similar effect. In the said judgment, the Madras
High Court observed as under.

"If a person who has same interest as the plaintiff or a common or like interest with him does not
join in the institution of the suit or is impleaded only as a defendant it would be proper for a Court
to get him arrayed as co-plaintiff. But, in a case of this kind, where defendant 8 was setting up title
adverse to the plaintiff on the one hand and defendants 1 to 7 on the other it was wholly improper to
have made him a co-plaintiff and given him a decree in addition at the penultimate stage of the
trial."

16. In the light of the decisions of Calcutta, Gujarat and Madras High Courts, the principle may be
taken as well settled that if the interest of a defendant is not adverse to the interest of a pro forma
defendant, he can be transposed as plaintiff in the event of withdrawal or abandonment by the

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 Madaka Anjaneyulu vs Madaka Balaiah And Others on 4 December, 2000

original plaintiff. The same is not true when a defendant who seeks transposition as plaintiff is not
able to show that his interest is similar to the interest of the plaintiff. In any event, in my considered
opinion, in a suit for partition by brothers, where one of the brothers sets up a claim for the entire
property absolutely denying the right of other brothers for a share in the property, such claimant
cannot be transposed as appellant at the stage of appeal having regard to the peculiar nature of suit
for partition.

17. In the result, CMP. No.12986 of 2000 is dismissed and CMP.No.12743 of 2000 filed by the
appellant is allowed.

18. Accordingly, the appeal is

dismissed as withdrawn. No. costs.

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