NIHAL KAUR Vs. GURDEV SINGH

JUDGEMENT

(1.) This petition is directed against the order of the trial Court dated 12.12.1988 whereby the application filed by Smt. Nihal Kaur for transposing her as plaintiff was dismissed. Plaintiff Gurdev Singh filed the suit for possession on 25.7.1988. Smt. Nihal Kaur was arrayed as a defendant therein. Admittedly, the interest of plaintiff Gurdev Singh and of Smt. Nihal Kaur was the same. When Nihal Kaur was served in the suit, she immediately moved the application under Order 1 Rule 10 CPC for transposing her as plaintiff in the suit. This application was contested on behalf of the defendants. The trial Court dismissed the said application primarily on the ground that the suit of the petitioner Nihal Kaur would be barred by time, if she is transposed as plaintiff from the date of the application. Reliance was placed on the judgment of this Court reported in Manphool and others v. Surja Ram and others, 1978 AIR(P&H) 216.

(2.) Learned counsel for the petitioner submitted that the view taken by the trial Court was wholly wrong and illegal. Even the judgment referred to above helps the petitioner. The suit could not be said to be barred by time as the limitation starts from the date when the suit was originally filed by Gurdev Singh.

(3.) I have heard the learned counsel for the petitioner. I find merit in this petition. Admittedly, the interests of the plaintiff Gurdev Singh and that of Smt. Nihal Kaur petitioner are the same. Nihal Kaur was made a defendant in the suit, as she was not available at the time of filing of the suit. On the facts and the circumstances of the case, she was entitled to be transposed as plaintiff along with Gurdev Singh under sub-rule (2) of Rule 10 of Order 1 of Civil Procedure Code on such terms as the trial Court may feel just and proper. The trial Court has acted illegally and materially irregularly in the exercise of its jurisdiction in passing the impugned order. In the judgment referred to above, it was held that no order of transposition as a plaintiff or addition of a new plaintiff should ordinarily be passed where it is prima facie patent that if the newly added party or the transposed plaintiff had originally filed the suit on the date when the suit in question was in fact filed, it would have been doubtlessly barred by time. It is nobody's case that the suit originally filed by Gurdev Singh was barred by time. Consequently, this petition succeeds. The impugned order is set aside and the application of Smt. Nihar Kaur is allowed with no order as to costs. However, it will be open to the trial Court to put terms as may appear to it to be just on the facts and circumstances of the case.