TaxTMI 
TaxTMI 
1976 (6) TMI 73
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.... mortgagors in respect of a mortgage deed dated June 29, 1944. Ali Hyder Khan died intestate in 1963 leaving behind him Musst. Hossenara Begum, Ali Safdar Khan, Ali Sarwar Khan, Ali Dewar Khan and Mst. Sayedunessa Begum, the respondents Nos. 1 to 5. By a deed of assignment dated April 22, 1966, the said Sailaja Ranjan Chaki for a valuable consideration transferred absolutely to the appellant his right, title and interest under the said agreement for sale dated March 15, 1958 in respect of the said premises. The appellant, thereafter, instituted a suit in this Hon'ble Court being suit No. 1322-A of 1966 for specific performance of the said agreement for sale. The said suit was ultimately decreed on May 30, 1969 on compromise on the terms mentioned in paragraph 5 of the appellant's petition before the trial Judge. One of the terms of the decree in favour of the appellant is as follows:-- "The plaintiff (appellant) shall also be at liberty to release the original deed of conveyance in respect of the said premises dated June 29, 1944 in favour of the predecessors of the defendants Nos. 2 to 6 and defendant No. 7 in their joint names from Sri. B. N. Ghosh who is claimin....
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....d, the matter was considered by the learned Subordinate Judge on the very day the said Alipore Court received the records i.e. on December 2, 1968 and the said subordinate Judge confirmed the sale. On July 2, 1969, Mr. Anilendra Nath Mitra a Solicitor of this Hon'ble Court, withdrew the sum of Rs. 2,11,050/-being the sale proceeds of the said premises and costs etc. on the basis of a power executed by one Dhirendra Nath Acharya who is alleged to be holder of a Power of Attorney from respondents Nos. 1 to 5 and 7. The appellant, having come to know all the aforesaid facts, instituted a suit being Title Suit No. 60 of 1970 in the Court of learned Subordinate Judge, Alipore against the heirs of late Ali Hyder Khan being respondents Nos. 1 to 5, against Ali Asgar Khan, respondent No. 7 and the said auction purchasers, respondents Nos. 9, 10 and 11 for a declaration that the appellant is the owner of the said premises under the decree passed by this Court on May 30, 1969. In the said suit No. 60 of 1970 the appellant made an application for an order restraining the auction purchasers from transferring the properties in any way or from taking possession thereof or for restraining the....
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....whereby the auction purchasers respondents Nos. 9, 10 and 11 in the second application and the respondent Ali Asgar Khan in the third application respectively prayed for their transposition to the category of the plaintiffs and transposition of the plaintiffs to the category of defendants in the said suit. By consent all the three applications were heard one after the other. It was also agreed that the final order would be passed by the trial Court after hearing all the three applications. The learned Judge delivered one judgment whereby the appellant's application for filing the terms of settlement was dismissed and the respondents Nos. 9, 10 and 11 and respondent No. 7 were transposed to the category of the plaintiffs. Three appeals have been filed by the appellant against the said judgment and order of the learned Judge. 5. The short point to be decided in the present appeal is whether the learned Judge was right in refusing to record the terms of settlement. 6. A preliminary point has been taken challenging the maintainability of the appeal. Mr. P. K. Das, Counsel for Ali Asgar Khan, has submitted that leave was granted to prefer the present appeal on the usual undert....
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.... Date when delivery was taken 24-3-76. 9. Date of filing of certified copy of order 24-3-76. 8. We are, therefore, satisfied that the appeal in fact was filed within the period of limitation and, in the facts of the case, the breach of undertaking in omitting to furnish the dates relevant for period of limitation in the Paper Book cannot be said to be voluntary or without reason. 9. Mr. Das has next contended that the respondent No. 3 Ali Safdar Khan has died in December, 1974 and no substitution of his heirs having been made till the date of hearing, the appeal abated against all the respondents. Reliance has been placed by him on R. P. Gupta v. Murli prasad, [1973] 1 SCR 63, in support of his contention. 10. In reply to this contention, Mr. Dutt, prayed for an adjournment of the hearing of the appeal to enable his client to make a formal application for putting the heirs and legal representatives of Ali Safdar Khan on record. We have, however, granted the said prayer and adjourned the hearing. A formal application has been made on April 7, 1976 which has been disposed of by us by a separate judgment today. In our judgment, we have held that as Musst. Hossena....
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.... interests of the defendants are not adversely affected in any way if the plaintiffs are allowed to withdraw the suit. To Illustrate, in a partition suit by a sole plaintiff against defendants, the former cannot be allowed to withdraw the suit inasmuch as a defendant having a cause of action against such plaintiff, may be allowed to be transposed as plaintiff in the suit. Reliance may be Placed on Bhupendra Narayan Sinha v. Rajeshwar Prosad. The Judicial Committee in this case held that transposition of a party under Order 1, Rule 10 should be allowed where it is necessary for a complete adjudication upon the questions involved in the suit and to avoid multiplicity of proceedings. Similarly, in a suit under Section 62 of the Code a plaintiff is not allowed to withdraw the suit if one of the defendants makes en application to proceed with the suit after being transposed as a plaintiff. Reliance may be placed upon AIR 1920 Mad 732. Similar situation may arise in a suit for accounts of a firm by a Partner. We are, therefore, satisfied that where an application simpliciter has been made under Order XXIII, Rule 1, the Court cannot compel the plaintiff to proceed with the suit and the de....
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....fs. Smt. Ajita Debi, the defendant No. 1 is supposed to have entered into an agreement with Musst. Hossenara Begum, Ali Safdar Khan, deceased, Ali Sarwar Khan, Ali Dewar Khan and Mst. Sayedunessa Begum. There is nothing to show that the suit has been adjusted wholly or in part between Smt. Ajita Debi and Ali Asgar Khan. It has been submitted by the Counsel for the appellant that Ali Asgar Khan is acting in collusion and conspiracy with Smt. Ajita Debi. If this submission is correct, then Ali Asgar Khan also should have been a party to the said terms of settlement. On the contrary, Smt. Ajita Debi has tried to file terms of settlement by excluding Ali Asgar Khan. It cannot be denied that Ali Asgar Khan and the heirs of Ali Hyder Khan have identical interests in the suit premises. It is true that respondents Nos. 5, 6 and 7 who happen to be the auction purchasers under a mortgage decree against Ali Hyder Khan and Ali Asgar Khan were not parties in the Suit No. 1322-A of 1966, that is, Ajita Debi's suit for specific performance of the agreement for sale against Ali Hyder Khan and Ali Asgar Khan; Counsel for the appellant is right in his submission that no relief has been claimed i....