LAL NARAIN SINGH Vs. UGESHWARDHARI SINGH

JUDGEMENT

(1.) WHEN this rule came on for hearing on the first occasion I understood that the petitioners were agreeable to the transposition of defendant 2 to the side of the plaintiffs. It is now Contended that in the circumstances such transposition should not be made and reference is made to decisions one of which has been dissented from by this Court, but there is a decision of the Madras High Court on this subject. Order 1, Rule 10, is in the widest possible language and their Lordships of the Privy Council have pointed out that this transposition should be adopted in all cases where it is necessary for a complete adjudication upon the questions involved in the suit and to avoid multiplicity of proceedings. Now what the position would have been if defendant 2 had not been a party to the action it is unnecessary to contemplate. It is sought in this case to differentiate the decision of this Court in Surajman Prasad Misra V/s. Sadanand Misra 1932 Pat 846=140 IC 572 from the facts of the present case. The only difference in that case, where the transposition was allowed, was that defendant 4 there was styled a benamidar. Now the Negotiable Instruments Act does not recognize benami transactions. It allows a person to recover on a bill only if he is the person in whose favour the bill is executed or the person in whose favour an endorsement is made. Now the proper person in this case to have sued would have been defendant 2, and the argument that defendant 2's interest has been assigned by the partition to the plaintiff, is for the purpose of this case entirely irrelevant, for the reasons which I have stated in connexion with my reference to the Negotiable Instruments Act. In order to do justice between the parties and as defendant 2 is a party to the action, he will be transposed to the category of the plaintiffs. With that variation the order of the learned Judge in the Court below will be confirmed. The application is dismissed with costs. Hearing-fee is assessed at two gold mohurs.