KISHORI LAL Vs. SMT. MAHANTOO AND ORS.

JUDGEMENT

(1.) This is a Plaintiffs' revision petition directed against an Order dated June 2, 1977, made by the learned Senior Subordinate Judge, Solan, refusing to transpose the Petitioners from the array of Plaintiffs to the array of Defendants under Order 1 Rule 10 of the Code of Civil Procedure.

(2.) A suit was filed by several Plaintiffs, including the present Petitioner, for a declaration in respect of property. Reliefs for injunction and possession were also prayed. During the pendency of the suit an application was made by the Petitioners under Order 6 Rule 17 of the Code of Civil Procedure, alleging that the land included in Khasra No. 133/131/87 belonged to them as exclusive owners by virtue of a family partition deed dated December 24, 1933, and that it has been erroneously described in the plaint as belonging jointly to all the Plaintiffs. It was prayed that they may be allowed to amend the plaint so that this particular parcel of land should be shown in their exclusive ownership. The learned Senior Subordinate Judge rejected the application on June 2, 1977, primarily on the ground that the Petitioners, who were Plaintiffs in the suit, could not be allowed to set up a case which was hostile to the case set up by their co -Plaintiffs. Some observations were also made on the applicability of Order 1 Rule 10 of the Code, and it was held that that provision could not be availed of by the Petitioners and that they should file a separate suit against their collaterals for relief in respect of the khasra number. The Petitioners then applied under Order 1 Rule 10 of the Code for being transposed from the array of Plaintiffs to the array of Defendants. The application was rejected by the learned Senior Subordinate Judge on June 2, 1977. The learned Senior Subordinate Judge took the view which he had taken in the Order disposing of the application under Order 6, Rule 17 of the Code, that is to say that Order 1 Rule 10 could not be availed of for transposition of a party from the array of Plaintiffs to the array of Defendants. Indeed, the Order under Order 6 Rule 17 of the Code was made a part of the Order under Order 1 Rule 10. The Petitioners now apply in revision.

(3.) It seems clear that the learned Senior Subordinate Judge has erred in taking the view that a party cannot be transposed under Order 1 Rule 10 of the Code from the array of Plaintiffs to the array of Defendants. In Padma Lochan Pal v/s. Kali Kamal Pal and Ors. a Division Bench of the Calcutta High Court held that a Court could transfer a Plaintiff from the category of Plaintiffs to that of Defendants under Order 1 Rule 10 of the Code. A learned Single Judge of the Rangoon High Court in I.F. Seedat and Ors. v/s. Mariam Bi Bi and Ors. observed that if some of the Plaintiffs were not prepared to adopt a common case with the other Plaintiffs, the only proper course open was to apply to strike them out as Plaintiffs and to add them as Defendants. Such a course would conduce to a complete adjudication of all the questions involved and would avoid multiplicity of proceedings. The Judicial Committee of the Privy Council recommended the adoption of such a course in Commissioner for Local Government Lands and Settlement v/s. Abdulhusein Kaderbhai, where it declared that prima facie the Defendants should be added as co -Defendants if it was found necessary to obtain a complete adjudication between the parties.