OM PARKASH Vs. PARSHOTAM LAL

JUDGEMENT

(1.) THIS is defendants' petition filed under Article 227 of the Constitution praying for setting aside order dated 22.2.2005 passed by the Civil Judge (Jr. Division), Amloh allowing an application under Order I Rule 10 CPC granting permission to respondent No. 1 Parshotam Lal to be transposed as plaintiff who was a co-defendant in the Civil suit filed by Rajinder Kumar, respondent No. 2.

(2.) BRIEF facts of the case are that Rajinder Kumar, respondent No. 2 who is nephew of the petitioner filed Civil Suit No. 677 dated 20.2.2001/22.9.2003 for partition of the suit property by metes and bounds (Annexure P-3). It has been claimed that the property in dispute was ancestral in nature and he alongwith respondent No. 1 Parshotam Lal (who was impleaded as defendant No. 3) has share in the property. The suit was contested by filing the written statement by the defendant-petitioners in which stand has been taken that the shops were constructed by their common ancestor who was infact absolute owner. Respondent No. 1 Parshotam Lal, who was also impleaded as co-defendant with the petitioners in the suit filed an application for being transposed as plaintiff.

(3.) AFTER hearing the learned counsel I am of the considered view that respondent No. 1 who was impleaded as defendant in the suit has been permitted to be transposed as plaintiff under Order I, Rule 10 CPC. It is admitted fact that respondent No. 1 had admitted in the written statement all the averments made by Rajinder Kumar, plaintiff-respondent No. 2. As early as in 1931 the Privy Council in Bhupender Narayan Sinha v. Rajeswar Prasad Bhakat and others, AIR 1931 PC 162, had taken the view that in order to avoid multiplicity of litigation a proforma defendant should always be joined as co-plaintiff which may otherwise be necessary for complete adjudication of the question involved in the suit. The afore-mentioned principle of joining the proforma defendant as co-plaintiff has been extended to even ordinary defendant to become a co- plaintiff by the Supreme Court in the case of R.S. Maddanapa v. Chandramma, AIR 1965 SC 1812, which has been followed by this Court in the case Nishabar Singh v. Local Gurdwara Committee Manji Sahib, AIR 1986 P&H 402. In that case the property was bequeathed to two religious institutions equally by Will. One of the institutions had filed suit for possession of its share and the other institution was joined as a defendant. It was held that the Courts can always transpose defendant as a plaintiff and could grant decree in its favour to avoid multiplicity of litigation and to do complete justice between the parties.