R. DHANASUNDARI @ R. RAJESWARIversusA.N. UMAKANTH & ORS.

648                       [2019]
               SUPREME COURT     4 S.C.R. 648
                              REPORTS                       [2019] 4 S.C.R.


A                  R. DHANASUNDARI @ R. RAJESWARI
                                           v.
                          A.N. UMAKANTH & ORS.
                          (Civil Appeal No. 7292 of 2009)
B                                MARCH 06, 2019
       [UDAY UMESH LALIT AND DINESH MAHESHWARI, JJ.]
             Code of Civil Procedure, 1908 – Or. XXIII, r.1-A r/w Or. I,
      r.10 – Property in question purchased in the name of partnership
      firm of the plaintiff and defendant no.1 – Firm dissolved– Property
C
      vested with the plaintiff– Suit filed by the plaintiff for cancellation
      of the sale deed, executed by defendant no.1, in favour of
      defendant no.2-appellant, allegedly despite having relinquished
      rights in the suit property – Plaintiff died, his 3 sons and 4
      daughters impleaded as plaintiff nos.2 to 8 – Plaintiff no.5-
D     respondent no.1 given power of attorney by his siblings – Suit
      decreed ex-parte – Decree set aside, suit restored – In the
      interregnum, plaintiff no.5 sold the suit property to respondent nos.2
      to 4, who moved application for being impleaded as plaintiffs –
      Allowed, joined the suit as plaintiff nos.9 to 11– Plaintiff nos.2 to 4
      & 6 to 8 revoked plaintiff no.5’s power of attorney and moved
E
      application for transposition of plaintiff no.5 and plaintiff nos.9-
      11 as defendants – Allowed, plaintiff nos.5 and 9-11 transposed as
      defendant nos.3 to 6 – Plaintiffs sought withdrawal of suit –
      Objected by defendant nos.3-6 who also filed application u/Or. XXIII,
      r.1-A r/w Or. 1, r.10 for transposition as plaintiffs – Allowed – On
F     appeal, held: Or.1, r.10 provides for addition, deletion and
      substitution of parties and the proposition for transposition of a
      party from one status to another, by its very nature, inheres in
      sub-rule(2) of r.10 of Or. 1– u/Or. XXIII, r.1, plaintiff may seek
      permission for withdrawal of suit or abandonment of part of
      claim– Rule 1-A thereof deals with an eventuality where the
G
      plaintiff withdraws his suit or abandons his claim but a proforma
      defendant has a substantial question to be decided against the
      co-defendant – Powers of the Court to grant prayer for
      transposition are very wide – Principal cause in the suit is
      challenge to the sale deed executed by defendant no.1, with the
H
                                     648
 R. DHANASUNDARI @ R. RAJESWARI v. A.N. UMAKANTH                       649


original plaintiff asserting his ownership over the property– In the   A
given status of parties, even if plaintiff nos.5 and 9 to 11 were
transposed as defendant nos.3 to 6, their claim against defendant
nos.1 & 2 did not come to an end and the suit remained essentially
against the defendant nos.1 & 2– Interest of the existing plaintiffs
as also the defendant nos.3 to 6 had been one and the same as
                                                                       B
against the defendant nos.1 & 2 – When the plaintiffs entered into
an arrangement with defendant nos.1&2 and sought permission to
withdraw the suit, the right of defendant nos.3-6 to continue with
the litigation on their claim against defendant nos.1 & 2
immediately sprang up and they were entitled to seek transposition
as plaintiffs u/Or.XXIII, r.1-A.                                       C
     Code of Civil Procedure, 1908 – Or. I, r.10 – Object of –
Discussed.
      Dismissing the appeal, the Court
      HELD: 1.1 On the facts and in the circumstances of this          D
case, upon the existing plaintiffs seeking permission to withdraw
under Order XXIII Rule 1 CPC, the defendant Nos. 3 to 6 have
rightly been allowed to be transposed as plaintiffs under Order
XXIII Rule 1-A read with Order I Rule 10 CPC and to continue
with the suit, as originally filed against the defendant Nos. 1 and
2. The law of procedure relating to the parties to a civil suit is     E
essentially contained in Order I of the Code of Civil Procedure,
dealing with various aspects concerning joinder, non-joinder and
mis-joinder of parties. Rule 10 of Order I specifically provides
for addition, deletion and substitution of parties; and the
proposition for transposition of a party from one status to another,   F
by its very nature, inheres in sub-rule (2) of Rule 10 of Order I
CPC. On the other hand, the law of procedure in relation to
withdrawal and adjustment of suits is contained in Order XXIII
of Code of Civil Procedure. As per Rule 1 thereof, a plaintiff may
seek permission for withdrawal of suit or abandonment of a part
of claim. Rule 1-A thereof deals with an eventuality where the         G
plaintiff withdraws his suit or abandons his claim but a pro forma
defendant has a substantial question to be decided against the
co-defendant. The object of Rule 10 of Order I CPC is essentially
to bring on record all the persons who are parties to the dispute
                                                                       H
650            SUPREME COURT REPORTS                      [2019] 4 S.C.R.


A     relating to the subject matter of the suit so that the dispute may
      be determined in their presence and the multiplicity of
      proceedings could be avoided. [Paras 7-9] [656-F-H; 657-A, D,
      G, E]
             1.3 As per Rule 1-A ibid., in the eventuality of plaintiff
B     withdrawing the suit or abandoning his claim, a pro forma
      defendant, who has a substantial question to be decided against
      the co-defendant, is entitled to seek his transposition as plaintiff
      for determination of such a question against the said
      co-defendant in the given suit itself. The very nature of the
      provisions contained in Rule 1-A ibid. leaves nothing to doubt
C     that the powers of the Court to grant such a prayer for
      transposition are very wide and could be exercised for effectual
      and comprehensive adjudication of all the matters in controversy
      in the suit. The basic requirement for exercise of powers under
      Rule 1-A ibid. would be to examine if the plaintiff is seeking to
D     withdraw or to abandon his claim under Rule 1 of Order XXIII
      and the defendant seeking transposition is having an interest in
      the subject-matter of the suit and thereby, a substantial question
      to be adjudicated against the other defendant. In such a
      situation, the pro forma defendant is to be allowed to continue
      with the same suit as plaintiff, thereby averting the likelihood of
E     his right being defeated and also obviating the unnecessary
      multiplicity of proceedings. The present one is clearly a case
      answering to all the basics for applicability of Rule 1-A of Order
      XXIII read with Rule 10 of Order I CPC. The principal cause in
      the suit is challenge to the sale deed executed by defendant No.
F     1 in favour of defendant No. 2, with the original plaintiff asserting
      his ownership over the property in question. In the given status
      of parties, even if the plaintiff Nos. 5 and 9 to 11 were later on
      transposed as defendant Nos. 3 to 6, the suit remained
      essentially against the defendant Nos. 1 and 2, that is, in
      challenge to the sale deed dated 23.03.1985, as executed by the
G     defendant No. 1 in favour of the defendant No. 2. In regard to
      this cause, even if plaintiff Nos. 5 and 9 to 11 came to be
      transposed as defendant Nos.3 to 6, their claim against
      defendant Nos.1 and 2 did not come to an end; rather, the
      interest of the existing plaintiffs as also the defendant Nos. 3 to 6
H
 R. DHANASUNDARI @ R. RAJESWARI v. A.N. UMAKANTH                            651


had been one and the same as against the defendant Nos. 1 and               A
2. In the given status of parties and the subject matter of the
suit, when the plaintiffs entered into an arrangement with
defendant Nos. 1 and 2 and sought permission to withdraw under
Order XXIII Rule 1 CPC, the right of defendant Nos. 3 to 6 to
continue with the litigation on their claim against defendant Nos.1
                                                                            B
and 2 immediately sprang up and they were, obviously, entitled
to seek transposition as plaintiffs under Order XXIII Rule 1-A
CPC. It is also noteworthy that even if some question is sought
to be raised as regards the rights of the subsequent purchasers
(defendant Nos. 4 to 6), the right of the defendant No. 3 (earlier
the plaintiff No. 5) to prosecute the suit as a plaintiff remains           C
rather indisputable in view of his status as one of the legal
representatives of the original plaintiff. The right of the said
defendant No. 3 (earlier the plaintiff No. 5) to challenge the sale
deed between defendant No. 1 and defendant No. 2 did not get
annulled only by his earlier transposition as the defendant; and
                                                                            D
he cannot be considered bound by the arrangement between the
existing plaintiffs and the defendant Nos. 1 and 2. The Trial Court
was justified in allowing the prayer for transposition. The High
Court rightly declined to interfere.[Paras 10-13] [658-B-H;
659-A-E]
      Anil Kumar Singh v. Shivnath Mishra (1995) 3 SCC                      E
      147 : [1994] 5 Suppl. SCR 135 - referred to.
                         Case Law Reference
      [1994] 5 Suppl. SCR 135             referred to     Para 9
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7292                   F
of 2009.
      From the Judgment and Order dated 12.10.2006 of the High Court
of Judicature at Madras in C.R.P. (PD) No. 10 of 2006.
      A.N. Venugopala Gowda, Sr. Adv., M. A. Chinnasamy,
                                                                            G
Ms. C. Rubavathi, V. Senthil Kumar, P. Raja Ram, Advs. for the Appellant.
      Sunil Fernandes, Darpan Sachdeva, P. V. Yogeswaran,
A. K. Upadhyay, Y. Lokesh, Babul Kumar, Mrs. D. Bharathi Reddy,
Advs. for the Respondents.
                                                                            H
652             SUPREME COURT REPORTS                            [2019] 4 S.C.R.


A            The Judgment of the Court was delivered by
             DINESH MAHESHWARI, J. 1. This appeal by special leave
      is directed against the judgment and order dated 12.10.2006, as passed
      in C.R.P. (PD) No. 10 of 2006, whereby the High Court of Judicature at
      Madras has upheld the order dated 07.07.2005, as passed in O.S. No.
B     219 of 2004 by the District Munsif, Chengalpattu allowing the application
      filed by defendant Nos. 3 to 6 for transposing them as plaintiffs, after
      the existing plaintiffs sought permission to withdraw the suit.
             2. The prayer of defendant Nos. 3 to 6 to be transposed as
      plaintiffs under Order XXIII Rule 1-A read with Order I Rule 10 of the
C     Code of Civil Procedure, 1908 (‘CPC’), came to be made and allowed
      in somewhat peculiar set of facts and circumstances, which could be
      noticed, in brief, as follows:-
            (a) The civil suit in question was originally instituted in the Court
      of the Principal Subordinate Judge, Chengalpattu by A.C. Nataraja
D     Mudaliar (original plaintiff) against A.V. Manoharan (defendant No.1 -
      respondent No. 1 herein) and R. Dhanasundari @ R. Rajeshwari
      (defendant No. 2 - appellant herein) for cancellation of the sale deed
      dated 23.03.1985, which was executed by defendant No. 1 in favour of
      defendant No.2. This suit was initially registered as O.S. No. 122
      of 1989.
E
             (b) The assertions in the plaint had been that the suit schedule
      property was purchased in the name of a partnership firm M/s South
      India Engineering Works of which, the plaintiff and the defendant No. 1
      were the partners; and that the said firm was dissolved by a deed of
      dissolution dated 22.05.1971 whereby, the defendant No. 1 A.V.
F     Manoharan was relieved of the assets and liabilities of the firm and the
      suit schedule property vested with the plaintiff A.C. Nataraja Mudaliar.
      It was alleged that the defendant No. 1 A.V. Manoharan, despite having
      relinquished the rights in the suit property, sold the same to the
      defendant No. 2 under the impugned sale deed dated 23.03.1985.
G             (c) During pendency of this suit, the original plaintiff A.C. Nataraja
      Mudaliar expired on 19.05.1988 leaving behind 3 sons and 4 daughters
      as his legal representatives, who were impleaded as plaintiff Nos. 2 to 8
      in the suit. One of the sons of the original plaintiff namely, A. N. Umakanth
      (plaintiff No. 5- respondent No. 1 herein) was extended power of attorney
      by his siblings.
H
 R. DHANASUNDARI @ R. RAJESWARI v. A.N. UMAKANTH                                653
             [DINESH MAHESHWARI, J.]

       (d) The suit was decreed ex parte in the year 1995 but later on,         A
the ex parte decree was set aside and the suit was restored to the
original number. However, in the interregnum, the respondent No. 1 A.
N. Umakanth, the power of attorney holder of all the legal representatives
of the original plaintiff, sold the suit property to three persons, namely
Ramasamy, Dhanam Ramasamy and Venkatasubramanian (respondent
                                                                                B
Nos. 2 to 4 herein) through a registered sale deed dated 04.07.1995. In
view of this transaction, upon restoration of the suit, the said purchasers
moved an application (IA No. 135 of 2002) for being impleaded as
plaintiffs. This application was allowed on 21.06.2002 and thereby, the
said purchasers were allowed to join the suit as plaintiffs Nos. 9 to 11.
      (e) However, the other plaintiffs (Nos. 2 to 4 and 6 to 8) took           C
exception to the aforesaid transaction of sale by the plaintiff No. 5; they
revoked his power of attorney and moved an application (IA No. 468 of
2003) for transposition of the plaintiff No. 5 and his purchasers (plaintiff
Nos. 9 to 11) as defendants. This application was allowed on 25.06.2003
and, accordingly, the plaintiff No. 5 and plaintiff Nos. 9 to 11 were           D
transposed as defendants 3 to 6 in this suit.
       (f) Thus, at and until the given juncture, the proceedings and
developments had been that in the civil suit for cancellation of sale deed
executed by the defendant No. 1 in favour of the defendant No. 2, the
original sole plaintiff had expired; his legal representatives came on record   E
as plaintiff Nos. 2 to 8 with plaintiff No. 5 being the power of attorney
holder of the other plaintiffs; the suit was decreed ex parte and the said
attorney sold the suit property to three persons; when the ex parte
decree was set aside and the suit was restored to its number, the said
purchasers came on record as plaintiff Nos. 9 to 11; and later on, the
said seller and purchasers (plaintiff Nos. 5 and 9 to 11) were transposed       F
as defendant Nos. 3 to 6. At this juncture and with such change of
complexion, the suit was transferred to the file of District Munsif Court,
Chengalpattu and was renumbered as O.S. No. 219 of 2004.
       (g) After having, thus, been transferred and renumbered with
addition and transposition in the array of parties, the suit in question        G
proceeded in trial but, when the matter reached the stage of
cross-examination of the defendants’ witness DW-3, the plaintiffs filed
a memo seeking permission to withdraw the suit, for the matter having
been settled with the defendant Nos. 1 and 2. Though the defendant
Nos. 1 and 2 did not oppose the prayer so made by the plaintiffs but            H
654            SUPREME COURT REPORTS                         [2019] 4 S.C.R.


A     then, the defendants 3 to 6 (who were transposed as defendants from
      their earlier position as plaintiffs) filed objections to the memo for
      withdrawal and also filed the application (IA No. 153 of 2005) under
      Order XXIII Rule 1-A read with Order I Rule 10 CPC with the prayer
      that they be transposed as plaintiff Nos. 2 to 5 in this suit.
B           3. The said application for transposition (IA No. 153 of 2005)
      came to be allowed by the Trial Court by its impugned order dated
      07.07.2005 with the following observations:-
             “Upon perusing the petition, counter it reveals that the
            original suit was filed in the year 1989. Originally the
C           petitioner has filed the above suit as a Power of Attorney
            agent of plaintiffs. When the power was in force, the power
            given to the petitioner was cancelled. When the power was
            inforce, the petitioner sold most of the suit item. The
            purchasers moved an application to implead themselves as
            plaintiffs in the above suit and the same was allowed. Later
D           the plaintiffs have filed application to transpose the
            plaintiffs 5, 9 to 11 as defendants and the same was allowed.
            Later the trial commenced and the plaintiff witness had been
            examined. On the side of defendants 3 witnesses were
            examined. The cross-examination of 2nd defendant’s husband
E           has been deferred. At this stage the plaintiff and the 2 nd
            defendant entered into compromise and filed a memo stating
            that the suit is not pressed as settled out of court. The
            petitioner sold the property while the power of attorney was
            in force. Therefore the petitioner has interest in the out come
            of the suit. When the case is at the tail end and the suit is of
F           the year 1989 and if the suit is allowed to be withdrawn this
            petitioner has no remedy and is not in a position to get any
            remedy in this suit. More over the petitioners if file fresh suit,
            the said suit will be barred by limitation. When all the parties
            to the suit entered into compromise, the court will permit the
G           parties to withdraw the suit. But in this case only the plaintiff
            and 2 nd defendant alone entered into compromise. The
            remaining defendants are not parties to the compromise. Since
            there is no compromise with other defendants, this court will
            not accept as the matter is fully settled.

H
 R. DHANASUNDARI @ R. RAJESWARI v. A.N. UMAKANTH                           655
             [DINESH MAHESHWARI, J.]

      For the aforesaid reasons and in the interest of justice and to      A
      settle the matter once for all and determine the rights of the
      parties, this petition is allowed.”
      4. Aggrieved by the order aforesaid, the defendant No. 2
(appellant herein) preferred the revision petition that has been
considered and dismissed by the High Court in its impugned order dated     B
12.10.2006 while observing as under:-
      “15…….it is seen in this case that the defendants 3 to 6 who
      seek to transpose themselves as plaintiffs, were originally
      arrayed as plaintiffs 5 and 9 to 11. On the ground that the
      5th plaintiff (now the 3rd defendant) acted against the interest     C
      of the other plaintiffs (his own brothers and sisters) in selling
      the suit property to the defendants 4 to 6, the plaintiffs got
      them originally transposed as defendants 3 to 6 in I.A. No.
      468 of 2003. In other words, the present defendants 3 to 6
      are subsequent purchasers, pendente lite, they had a
      substantial issue to be adjudicated as against the defendants        D
      1 and 2, when they were plaintiffs 5 and 9 to 11. By virtue of
      their transposition as defendants 3 to 6, in the year 2003,
      they cannot be said to have lost their rights to have the same
      question adjudicated as against the defendants 1 and 2. As
      a matter of fact, the 3rd defendant’s right to prosecute the suit    E
      as a plaintiff, flowed out of his status as one of the legal
      heirs of the original sale relief prayed for in the suit filed, by
      his father did not get annulled by his transposition as the
      third defendant in the year 2003.
       16. If the plaintiffs contest the suit and succeed, such            F
      success would have automatically enured to the benefit of
      the defendants 3 to 6. Therefore, the defendants 3 to 6 can
      be said to have an identity of interest with the plaintiffs.
      17. Under such circumstances, I am of the view that the Trial
      Court was right in ordering the transposition of the                 G
      defendants 3 to 6 as plaintiffs. Therefore, I find no merits in
      the Civil Revision and the Civil Revision Petition is dismissed.
      No costs. The connected CMP & VCMP are closed.”


                                                                           H
656             SUPREME COURT REPORTS                            [2019] 4 S.C.R.


A            5. Assailing the order aforesaid, learned counsel for the appellant
      (defendant No. 2) has strenuously argued that the transaction
      concerning defendant Nos. 3 to 6 having taken place much after the
      institution of the suit, these defendants have no cause of action against
      defendant Nos. 1 and 2 and hence, they cannot be transposed as
      plaintiffs; that the right of the dominus litus plaintiffs to withdraw the
B
      suit under Order XXIII Rule 1 CPC cannot be curtailed, especially when
      they do not seek any liberty to file a fresh suit; and that the subsequent
      purchasers have no legal right to seek cancellation of the sale deed
      which was executed in favour of the appellant way back in the year
      1985. These submissions are supported on behalf of the respondent
C     Nos. 6 & 8 to 11 (the plaintiffs) with the contentions that the subsequent
      purchasers have a separate and distinct cause of action, who ought to
      institute a separate suit and have no right to be transposed as plaintiffs in
      the present suit.
             6. Per contra, learned counsel for the respondent No. 1 has duly
D     supported the order impugned with reference to the subject matter of
      the suit as also the developments that have taken place after filing of the
      suit and with the submissions that defendant Nos. 3 to 6 have identical
      interest to seek cancellation of the sale deed executed by the defendant
      No. 1 in favour of the defendant No. 2. Hence, according to the learned
      counsel, when the existing plaintiffs seek to withdraw, the defendant
E     Nos. 3 to 6 have a right to be transposed as plaintiffs so as to seek
      adjudication of their claim against the defendant Nos. 1 and 2 in relation
      to the suit property.
             7. Having bestowed anxious consideration to the rival
      submissions and having examined the record with reference to the law
F     applicable, we are clearly of the view that on the facts and in the
      circumstances of this case, upon the existing plaintiffs seeking
      permission to withdraw under Order XXIII Rule 1 CPC, the defendant
      Nos. 3 to 6 have rightly been allowed to be transposed as plaintiffs
      under Order XXIII Rule 1-A read with Order I Rule 10 CPC and to
G     continue with the suit, as originally filed against the defendant Nos. 1
      and 2.
             8. The law of procedure relating to the parties to a civil suit is
      essentially contained in Order I of the Code of Civil Procedure, dealing
      with various aspects concerning joinder, non-joinder and mis-joinder of
H
    R. DHANASUNDARI @ R. RAJESWARI v. A.N. UMAKANTH                             657
                [DINESH MAHESHWARI, J.]

parties. Rule 10 of Order I specifically provides for addition, deletion        A
and substitution of parties; and the proposition for transposition of a party
from one status to another, by its very nature, inheres in sub-rule (2) of
Rule 10 of Order I CPC that reads as under:-
          “(2) Court may strike out or add parties. - The Court may at
          any stage of the proceedings, either upon or without the              B
          application of either party, and on such terms as may appeared
          to the Court to be just, order that the name of any party
          improperly joined, whether as plaintiff or defendant, be struck
          out, and that the name of any person who or to have been
          joined, whether as plaintiff or defendant, or whose presence
          before the Court may be necessary in order to enable the              C
          Court effectually and completely to adjudicate upon and settle
          all the questions involved in the suit be added.”
       8.1 On the other hand, the law of procedure in relation to
withdrawal and adjustment of suits is contained in Order XXIII of Code
of Civil Procedure. As per Rule 1 thereof, a plaintiff may seek                 D
permission for withdrawal of suit or abandonment of a part of claim.
Rule 1-A thereof 1 deals with an eventuality where the plaintiff
withdraws his suit or abandons his claim but a pro forma defendant has
a substantial question to be decided against the co-defendant. This Rule
1-A of Order XXIII CPC reads as under:-                                         E
          “R.1-A. When transposition of defendants as plaintiff may
          be permitted.- Where a suit is withdrawn or abandoned by a
          plaintiff under Rule 1, and a defendant applies to be
          transposed as a plaintiff under Rule 10 of Order 1, the Court,
          shall, in considering such application, have due regard to            F
          the question whether the applicant has a substantial ques-
          tion to be decided as against any of the other defendants.”
       9. It remains trite that the object of Rule 10 of Order I CPC is
essentially to bring on record all the persons who are parties to the
dispute relating to the subject matter of the suit so that the dispute may      G
be determined in their presence and the multiplicity of proceedings could
be avoided. This Court explained the principles, albeit in a different
context, in the case of Anil Kumar Singh v. Shivnath Mishra: (1995)
3 SCC 147 in the following:-
1
    Inserted by the Amendment Act No. 104 of 1976
                                                                                H
658             SUPREME COURT REPORTS                            [2019] 4 S.C.R.


A           “7. ….. The object of the rule is to bring on record all the
            persons who are parties to the dispute relating to the subject-
            matter so that the dispute may be determined in their presence
            at the same time without any protraction, inconvenience and
            to avoid multiplicity of proceedings.”
B            10. As per Rule 1-A ibid., in the eventuality of plaintiff
      withdrawing the suit or abandoning his claim, a pro forma defendant,
      who has a substantial question to be decided against the co-defendant, is
      entitled to seek his transposition as plaintiff for determination of such a
      question against the said co-defendant in the given suit itself. The very
      nature of the provisions contained in Rule 1-A ibid. leaves nothing to
C     doubt that the powers of the Court to grant such a prayer for
      transposition are very wide and could be exercised for effectual and
      comprehensive adjudication of all the matters in controversy in the suit.
      The basic requirement for exercise of powers under Rule 1-A ibid.
      would be to examine if the plaintiff is seeking to withdraw or to abandon
D     his claim under Rule 1 of Order XXIII and the defendant seeking
      transposition is having an interest in the subject-matter of the suit and
      thereby, a substantial question to be adjudicated against the other
      defendant. In such a situation, the pro forma defendant is to be allowed
      to continue with the same suit as plaintiff, thereby averting the likelihood
      of his right being defeated and also obviating the unnecessary
E     multiplicity of proceedings.
             11. The present one is clearly a case answering to all the basics
      for applicability of Rule 1-A of Order XXIII read with Rule 10 of Order
      I CPC. As noticed, the principal cause in the suit is challenge to the sale
      deed executed by defendant No. 1 in favour of defendant No. 2, with
F     the original plaintiff asserting his ownership over the property in question.
      After the demise of original plaintiff, his sons and daughters came to be
      joined as plaintiff Nos. 2 to 8 with plaintiff No. 5 being the power of
      attorney holder of all the plaintiffs. After the suit was decreed ex parte,
      the plaintiff No. 5 transferred the property in question to the aforesaid
G     three purchasers, who were joined as plaintiff Nos. 9 to 11 when the ex
      parte decree was set aside and suit was restored for bi parte hearing.
      In the given status of parties, even if the plaintiff Nos. 5 and 9 to 11 were
      later on transposed as defendant Nos. 3 to 6, the suit remained essentially
      against the defendant Nos. 1 and 2, that is, in challenge to the sale deed
      dated 23.03.1985, as executed by the defendant No. 1 in favour of the
H
 R. DHANASUNDARI @ R. RAJESWARI v. A.N. UMAKANTH                                 659
             [DINESH MAHESHWARI, J.]

defendant No. 2. In regard to this cause, even if plaintiff Nos. 5 and 9 to      A
11 came to be transposed as defendant Nos. 3 to 6, their claim against
defendant Nos. 1 and 2 did not come to an end; rather, the interest of the
existing plaintiffs as also the defendant Nos. 3 to 6 had been one and the
same as against the defendant Nos. 1 and 2.
       12. In the given status of parties and the subject matter of the suit,    B
when the plaintiffs entered into an arrangement with defendant Nos. 1
and 2 and sought permission to withdraw under Order XXIII Rule 1
CPC, the right of defendant Nos. 3 to 6 to continue with the litigation on
their claim against defendant Nos. 1 and 2 immediately sprang up and
they were, obviously, entitled to seek transposition as plaintiffs under
Order XXIII Rule 1-A CPC.                                                        C

       13. It is also noteworthy that even if some question is sought to be
raised as regards the rights of the subsequent purchasers (defendant
Nos. 4 to 6), the right of the defendant No. 3 (earlier the plaintiff No. 5)
to prosecute the suit as a plaintiff remains rather indisputable in view of
his status as one of the legal representatives of the original plaintiff. The    D
right of the said defendant No. 3 (earlier the plaintiff No. 5) to challenge
the sale deed between defendant No. 1 and defendant No. 2 did not get
annulled only by his earlier transposition as the defendant; and he cannot
be considered bound by the arrangement between the existing plaintiffs
and the defendant Nos. 1 and 2. In the given set of circumstances, the           E
Trial Court had been justified in allowing the prayer for transposition and
the High Court has rightly declined to interfere.
       14. For what has been discussed hereinabove, this appeal fails
and is, therefore, dismissed.
                                                                                 F
Divya Pandey                                                 Appeal dismissed.




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