TaxTMI 
TaxTMI 
2025 (12) TMI 1843
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....in the suit, i.e., CS(OS) No. 2137/2006. FACTUAL MATRIX: 3. In order to comprehend the issues involved in the present case, relevant facts, in brief, are required to be noticed. 4. The genealogical chart of the family, indicating the array of parties and their corresponding position in the suit as well as in the present Appeal, is extracted hereinbelow: 5. Sh. Raghubir Singh Verma and Smt. Sushila Verma died intestate on 13.11.1989 and 20.06.2005, respectively. The immovable properties left behind by the deceased parents comprise property bearing No. A-181, Defence Colony, New Delhi; and Plot Nos. 30 and 201, Okhla Industrial Estate, Phase-III, New Delhi [hereinafter collectively referred to as the 'suit properties']. 6. The underlying civil suit, CS(OS) No. 2137/2006, was instituted by the Plaintiff/Respondent No. 1, Smt. Indira Warman, seeking partition and division by metes and bounds of the suit properties, along with the rendition of accounts and mesne profits. 7. Defendant No. 1/Respondent No. 2 has contested the suit by setting up an alleged Will dated 15.09.1983, purportedly executed by the late Sh. Raghubir Singh....
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....ination that the valuation exceeded Rs. 2 crores, the matter ultimately stood transmitted to this Court with the directions to the Plaintiff to amend the plaint qua the valuation of the suit for purposes of pecuniary jurisdiction. 13. After its transfer, CS(OS) No. 2137/2006 was listed for the first time on 14.02.2022; however, despite repeated opportunities granted by this Court, Plaintiff failed to file the amended plaint. As a result, the suit has remained at a standstill for nearly three years, during which Plaintiff either kept changing counsel or chose not to appear. 14. It is stated by Defendant No. 8 that the negligent and callous conduct of the Plaintiff has caused irreparable prejudice by depriving her of her 1/9th share in the demised properties, which are being illegally enjoyed by Defendant No. 1 and his family. It is further stated that the Plaintiff's persistent lack of diligence in prosecuting CS(OS) No. 2137/2006 gives rise to a reasonable apprehension that the Plaintiff and Defendant No. 1 are acting in concert to delay the proceedings with the intent to defeat Defendant No. 8's lawful entitlement to her 1/9th share....
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....ve Defendant as co-Plaintiff is a procedural tool to advance justice, especially where the original Plaintiff shows laxity, avoiding suit abandonment under Order XXIII. iv. Reliance is placed upon R.S. Maddanappa (Deceased) After Him By Legal Representatives v. Chandramma & Anr. [AIR 1965 SC 1812] ; Smt. Saila Bala Dassi v. Smt. Nirmala Sundari Dassi & Anr. [AIR 1958 SC 394]; and Hulas Rai Baijnath v. K.B. Bass & Co. Ltd. [AIR 1963 All 368]. 20. Learned Counsel for the Respondent Nos. 2 to 6/Defendant No. 1, while contending that the learned Single Judge has rightly dismissed the application for transposition as Order XXIII Rule 1A is the sole repository for the transposition of the Defendant as Plaintiff. 21. No other submissions have been made by the learned Counsel representing the parties. ANALYSIS AND FINDINGS: 22. At the outset, the issues that arise for consideration in the present Appeal are delineated hereinbelow: I. Whether Order XXIII Rule 1A is in derogation of Order I Rule 10(2)? II. Whether the learned Single Judge erred in holding that Order XXIII Rule 1A is the single repository of transposition of parties from Plaint....
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....ts constituent expressions: i. "At any stage of the proceedings" - This phrase confers a continuing and pervasive authority upon the Court, enabling the addition or deletion of parties not only during trial but even after the framing of issues or at the appellate stage, wherever the ends of justice so demand. ii. "Either upon or without the application of either party" - The provision expressly recognises the Court's suo motu power to act in the absence of a formal application, where such intervention is necessary for a complete and effective adjudication. iii. "Effectually and completely adjudicate upon and settle all the questions involved" - This expression constitutes the controlling test of the provision and reflects the fundamental objective of civil procedure, namely, to avoid fragmented or piecemeal adjudication. iv. "As may appear to the Court to be just" - This clause vests the Court with broad judicial discretion, enabling it to override technical objections or the rigid application of the dominus litis principle where the interests of justice so require. 27. The foregoing analysis makes it clear that Order I Rule 10(2) serves a....
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.... other defendants"." (Emphasis supplied.) 30. A perusal of the aforesaid makes it evident that although the Court already possessed a general power to order transposition of parties under Order I Rule 10 of the CPC, the legislature considered it necessary to provide a specific statutory mechanism to address situations arising upon the withdrawal or abandonment of a suit by the Plaintiff. 31. It is pertinent to note that one of the principal objectives of the 1976 Amendment was the simplification of procedural law and the curtailment of avoidable litigation by preventing multiplicity of proceedings. In the absence of a provision such as Order XXIII Rule 1A, the withdrawal of a suit by the Plaintiff could result in a Defendant, having an independent or competing claim arising from the same cause of action or subject matter, being compelled to institute a separate suit to seek adjudication of such claim, thereby leading to a proliferation of litigation. 32. The legislative intent underlying Order XXIII Rule 1A is, therefore, two-fold: first, to prevent a Plaintiff from frustrating or scuttling a lis to the prejudice of other interested parties through a strategic withdrawa....
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....his exercise, the requirement of a "substantial question" under Order XXIII Rule 1A necessarily falls to be assessed against the touchstone of "effective and complete adjudication" embodied in Order I Rule 10(2), thereby reinforcing that the two provisions operate in harmony and not in derogation of each other. 37. This harmonious construction also reveals a deeper, second- order insight into the procedural architecture, namely its function as a safeguard against abuse of the process of the Court. A Plaintiff, being the dominus litis, possesses the initial authority to institute a suit and thereby place the subject matter in lis pendens, with the attendant consequence of restricting subsequent dealings. If such a Plaintiff is thereafter permitted to withdraw the suit strategically, whether pursuant to a private settlement or in collusion with claimants, the result could be to effectively exclude or prejudice other legitimate claimants who are arrayed as Defendants. 38. It is in this backdrop that the integrated and harmonious application of Order XXIII Rule 1A and Order I Rule 10(2) assumes significance, as it empowers the Court to pierce such procedural stratagems by permitt....
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....ndant, to seek transposition as a Plaintiff in terms of Order I Rule 10 of the CPC. It was further held that, upon such an application, the Court is duty-bound to pass appropriate orders, having due regard to whether the applicant had a substantial and independent question to be adjudicated as against any of the other Defendants. 42. The decision thus reinforces the principle that procedural provisions must subserve substantive rights, and that a Defendant having an independent and enforceable interest in the subject-matter of the suit cannot be non-suited merely on account of the withdrawal or abandonment of the suit or laxity shown by the original Plaintiff. 43. Hence, it is a common procedural misconception to regard Order XXIII Rule 1A as the sole repository of the power to transpose Defendants as Plaintiffs. A careful and rigorous analysis of the scheme of the CPC, read alongside the consistent line of precedents, makes it clear that Order I Rule 10(2) constitutes the broader and primary source of such power, capable of being exercised even in situations where the conditions contemplated under Order XXIII Rule 1A are not attracted. Order XXIII Rule 1A merely identifies a....
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....t compliance. Such delay demonstrates inaction on the part of the Plaintiff and has contributed to the pendency of the proceedings, justifying a closer examination of the application of Defendant No. 8 for transposition. 49. It is further pertinent to note that in a suit for partition, every party is effectively in the position of a Plaintiff, as each seeks determination and allotment of their respective share in the common property. Defendant No. 8 is contesting for entitlement to her 1/9th share in the movable and immovable assets of her late parents, thus, this establishes her identity of interest with the original Plaintiff in seeking adjudication of her rightful claim. 50. The courts have consistently held that the withdrawal of the original Plaintiff cannot be permitted to frustrate the rights of the Defendants to have their shares adjudicated and partitioned. The Supreme Court in R.S. Maddanappa (supra) affirmed that in a partition suit, the Court, including the High Court in appeal, can transpose a Defendant as a Plaintiff suo motu to ensure complete justice. This is because the cause of action in a partition suit is continuous, and the failure of the Plaint....