TaxTMI 
TaxTMI 
1983 (3) TMI 317
X X X X Extracts X X X X
X X X X Extracts X X X X
....t No. 2 in the sale-deed that no person other than opponent No. 2 had any right, title or interest in the said property. The case of the petitioner is that, thereafter she became the owner and occupant of the said property, and on 30-7-1979 she was in peaceful possession and enjoyment of the said property. She was also recovering the rent, from the tenants. As the petitioner is ordinarily resident of Bombay, she used to be at Bombay. Whenever she used to be at Bombay, she used to lock her house. When she had so gone to Bombay after locking her house, opponent No. 2 had taken unauthorised possession of the same by breaking open the lock. Therefore, she received a telegram from her tenant Govindbhai Asharam Bardanwala on 1-9-1979 to that effect. On inquiry the said telegram was found to be true. Therefore, she filed a criminal complaint in the Court of the Judicial Magistrate, First Class, Mehsana. It is also her case that opponent. No. 2 had taken unlawful possession of the petitioner's property and allowed unlawfully without jurisdiction opponent No. 1 to enter into the rooms of the suit property under the pretext of alleged Banakhat of sale of the said property said to have be....
X X X X Extracts X X X X
X X X X Extracts X X X X
....8-10-1982, with a prayer that the petitioner should be transposed as the Plaintiff vice original plaintiff (present opponent No. 1) and that present opponent. No. 1 (original plaintiff) should be transposed vice the present petitioner as original defendant No. 2. Reasonable cost was also asked for. The grievance of the petitioner is that the learned trial Judge, by his order dated 30-10-1982, granted the withdrawal Purshis of the plaintiff (present opponent No. 1) under O. 23, R. 1 of the Code, and ordered her to pay the cost of Rs. 500 to the petitioner, and thus disposed of the suit without considering the prayer of the petitioner for transposition of the parties and restoring the possession of the suit property. In fact, annexed with the petition is the copy of application Ex. 210 in Regular Civil Suit No. 202 of 1979, and also the order below that application of the learned trial Judge. The body part of the said order clearly shows that the request of the petitioner for transposing her as the plaintiff was rejected. Though in the final order, ultimately the suit was disposed of as withdrawn with the order of cost of Rs. 500 to defendant No. 2, in the last paragraph before order....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sary or proper parties without any relief having been sought against them and they are merely pro forma. It should be noted that in that case, suit was filed by the appellant for declaration of his ownership and possession of the sub-soil, and an injunction restraining the respondents from digging and removing the stones, earth and minerals, etc. Therein it was found that, all the members of the family were parties to the suit and were at least jointly entitled to the whole. The pro forma defendants asked that a decree should be passed in favour of the appellant. If there was a technical objection to that, the Court clearly had power at any stage of the proceedings to remedy the defect under O. 1, R. 10 of the Code by adding the pro forma defendants as co-plaintiffs with the appellant. 8. Mr. Barot also relied on the decision of the Madhya Pradesh High Court in Sampatbai v. Madhusingh, AIR 1960 Madh Pra 84. Therein it has been held that under O. 1. R. 10(2) of the Code the test is not whether the joinder of the person proposed to be added as a defendant would be according to or against the wishes of the Plaintiff or whether the joinder would involve an investigation into a quest....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n is normally permissible and necessary in suits between partners for accounts, possession of partnership property or for partition, where there are some pro forma defendants. 9. In Ram Prasad Choudhary v. Mst. Fulia, AIR 1964 Pat 508, the Patna High Court considered that where it is necessary for a complete adjudication of the questions involved in the suit parties may be added or transposed, but, where the scope or character of the suit will be altered by the addition or transposition (as where the pro forma defendants do not wish to adopt the plaintiff's case) such addition or transposition cannot be permitted. 10. In Jagabandhu Saha v. Haris Chandra Sil, AIR 1922 Cal 459, the question was whether transfer by one Kumari was for legal necessity and whether the transfer created an indefeasible title. It was found that the plaintiff could succeed only on the basis that the sale by Kumari was for legal necessity. The fourth and fifth defendants, if they sued as plaintiffs, could succeed only on the contradictory hypothesis that the sale was not for legal necessity and did not affect their interest as reversioners. Therefore, it was held that if the application had been gra....