TaxTMI 
TaxTMI 
TaxTMI 
2004 (7) TMI 669
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.... what comes to be known is that the petitioners 1 and 2 herein have filed the above suit in O.S.No.108 of 199 8 before the lower Court seeking to declare that the Educational Agency constituted by the Plaintiff on 27.1.1998 is validly constituted Educational Agency of the schedule mentioned institution, in the alternative direction for a decree providing for a scheme of management wherein all the members of Founders are duly and properly represented in proportion to their contribution made originally and providing for a rotational management of the schedule mentioned institution and for costs. Pending the suit, the third petitioner herein who is the 7th defendant in the above suit has filed an Interlocutory Application in the above suit praying to transpose her as the third plaintiff in the above suit. 3. It further comes to be known that the learned Subordinate Judge has rejected the above unnumbered I.A. in O.S.No.108 of 1998 on ground that since the High Court has directed to dispose of the suit within a period of six months as per the judgment dated 19.11.2003 in W. A.Nos.1095 and 1096 of 1998 and W.P.Nos.8515 and 15151 of 1999 and since the second plaintiff is acting as the r....
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....ved in the suit and to avoid multiplicity of proceedings." 6. In the second judgment cited above, which was delivered way-back in 1931 by a single Judge of this Court, it has been held: "There is no abatement in the case of a representative suit by reason of the plaintiff's death .... any of those persons on whose behalf suit was filed can apply to be made plaintiff." 7. In the third judgment cited above, a learned single Judge of this Court, way-back in the year 1947, has held in a Second Appeal while giving expression to Order 1 Rule 8 CPC that: "Rule applies even to appeals. Appellate Court can allow amendment by permitting persons suing in individual capacity to sue in representative capacity when such amendment does not materially change nature of suit." 8. In the fourth judgment cited above, a Division Bench of this Court in a case reported in the year 1951 has held: "Where the plaintiffs applied for an order under O.1, R.8 and obtained such an order, it is impossible thereafter for them to contend that the suit was not brought by them in a representative capacity." 9. In the fifth judgment cited above, a Full Bench of this Cou....
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....ing the above judgments, the learned counsel for the revision petitioners would pray to allow the above civil revision petition. 14. On the other hand, the learned senior counsel appearing on behalf of the 5th respondent, in his crisp arguments advanced adhering to the facts and circumstances involved in this particular case and citing the petition filed by the petitioner herein would point out that defendant No.7, who is the petitioner, has no cause of action to seek the remedy to transpose her as the second plaintiff in the place of the original second plaintiff whose whereabouts are not known, so as to represent the first plaintiff institution; that so far as the 7th defendant is concerned, the suit is already over; that she has already given her consent to a decree to be passed and therefore since she has no existing cause of action, she has no locus standi to file an application of this sort to transpose her as a plaintiff to continue the suit particularly representing the first plaintiff institution. The learned senior counsel would also cite a judgment reported in AIR 2 001 ALLAHABAD 280 (SIHASAN RAI vs. RAM NARAIN ALIAS RAMAYAN RAI AND OTHERS) wherein a learned single Judg....
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....ed in the foregoing paragraphs. In all those judgments it has been held that 'in order to avoid multiplicity of proceedings, the transposition of party could be held valid and acceptable and that if necessary, the Court is having the power to transpose a defendant as the plaintiff and on the vice-versa.' This Court is in perfect agreement with regard to all those propositions held by the upper forums of law and cited on the part of the revision petitioner. But, whether those principles laid down could be applied to the facts of the case in hand is the point for consideration to decide the above application filed before the lower Court by the 7th defendant in the suit. 17. There is no denying of the fact that the 7th defendant who is figuring as the petitioner before the lower Court, and this Civil Revision Petition has filed a memo. dated 25.7.2003 before the trial Court wherein she has given her consent submitting for the decree to be passed in the above suit and that memo. is not even withdrawn so far and the said memo. is operating still. Whether the 7th defendant has got any right or locus standi to seek such a luxurious relief to transpose her as the third plaintiff s....