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13-WP-10012 OF 2019 .doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 10012 OF 2019

Sou. Nalini @ Madhavi Madhukar Murkute

Age 55 years, Occu : Service,
Residing at 7 `A’, Ganesh Datt Society,
Jayantrao Tilak Nagar, Sahkar Nagar No.1,
PUNE # 411 009
..Petitioner
(Orig. Plaintiff

Versus

(1f Shri Deepak Manohar Gaikwad

Age 62 years, Occu : Agriculture,

(2f Mrs. Rohini Deepak Gaikwad,

Age 61 years, Occu : Household,

(3f Smt. Sunita Dilip Gaikwad

Age 57 years, Occu : Household,

(4f Shri Shrikant Dilip Gaikwad,

Age 33 years, Occu : Service,

(5f Shri Shubham Dilip Gaikwad

Age 27 years, Occu : Service

(6f Miss Supriya Dilip Gaikwad

Age 25 years, Occu: Service

(7f Smt. Shakuntala Manohar Gaikwad

Age 82 years, Occu : Well to do
Respondent Nos.(1f to (7f are
all residing at “Matoshree” Bungalow,
Kondhava Budruk,
Taluka Haveli, District Pune.

(8f Sau. Rohini Shankar Jadhav,

Age 60 years, Occu : Service,
Residing at 4-B, `Shanti Heights’,
1st Floor, Survey No.54,
Near Khadi Machine, Katraj Kondhava Road,
Pune 411 046

(9f M/s Bora Properties,

Registered Partnership Firm,

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having its ofice at 1276/Accused,
Deccan Gymkhana,
Pune 411 004 Through its Partners

(Af Shri Gautamchand Bhikchand Bora,

Age Adult, Occu : Business,
Residing at 1, `Bora Paradise’,
Mrutyunjay Society, Kothrud,
Pune 411 038

(Bf Shri Santosh Bhikchand Bora,

Age Adult, Occu: Business,
Residing at 7, `Bora Pride’,
Bibwewadi, Pune 411 037

(10f Shri Rajan Harakchand Khivsara,

Age Adult, Occu: Developer,
Residing at Mary Flex Parking Plaza,
Mary God, Kalyani Nagar,
Pune 411 014

(11f Shri Ashok M. Chhabria

Age Adult, Occu : Developer,

(12f Smt. Sunita Ramesh Chhabria,

Age Adult, Occu : Household

(13f Shri Jethanand S. Bhatija

Age Adult, Occu : Developer,
Respondent Nos.(11f to (13f all
residing at 461, Budhwar Peth,
Pune 411 002

(14f Shri Mahadev Sopan Ghate

Age Adult, Occu : Developer,
Residing at Patharwadi, Post Bhivri,
Taluka Purandar, District Pune

[(15f Shri Devkinandan Gitaram Gupta,

Age 50 years, Occ: Business,
Residing at D-3, Lal Deul Housing Society,
Pune 411 001 ] (Deletedf

(16f Shri Dattatray Sadu Shinde,

Age 50 years, Occu : Business,

(17f Shri Anna Sadu Shinde,

Age 47 years, Occu : Business,

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(18f Shri Shankar Sadu Shinde
Age 42 years, Occu : Business,

(19f Shri Tukaram Aakanna @ Aabhanna Shinde,

Age 40 years, Occu:Business,

(20f Shri Dnyaneshvar, Aakanna @ Aabhanna Shinde,

Age 38 years, Occu : Service,
Respondent Nos.(16f to (20f are all
residing at Vaiduwadi, Hadapsar,
Pune 411 013

(21f Mrs. Sangeeta Balasaheb Kamthe,

Age 39 years, Occu : Agriculture/Household,

(22f Ms. Rupali Vikas Dnyandev Kamthe,

Age Adult, Occu: Household,
Respondent Nos.(21f and (22f are
residing at Khalad, Taluka Purandar,
Dist. Pune.

(23f Mrs. Chhaya Ankush Kamthe,

Age 44 years, Occu : Agriculture/Household,
Residing at Khalad, Taluka Purandar,
District Pune

(24f Mrs. Rekha Arjun Jagtap,

Age 62 years, Occu: Agriculture,

(25f Mrs. Suvarna Kumar Jagtap,

Age 52 years, Occu: Agriculture,
Respondent Nos.(24 and (25f are
residing at Saswad, Taluka Purandar,
District Pune

[(26f Ms. Meenakshi Chanmdrakant Bhoir

Age 50 years, Occu : Agriculture/Household,
Residing at `Clover Highland’, N.I.B.M. Road,
Kindhwa Khurd, Pune 411 048] (Deletedf

[(27f Shri Ganesh Murlidhar Sonavane,

Age 51 years, Occu : Agriculture/Household,
Residing at 1, Tadiwala Road,
Pune 411 001] (Deletedf

[(28f Shri Sunil Ramdhari Mittal,

Age 48 years, Occu : Agriculture/Household,
Residing at Khadki [E],
Sangamwadi, Pune 411 003] (Deletedf

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(29f Shri Balasaheb Jaywant Zende
Age 58 yars, Occu : Agriculture

(30f Shri Manoj Balasaheb Zende

Age 31 years, Occu : Agriculture

(31f Shri Tushar Balasaheb Zende

Age 30 years Occu : Agriculture
Respondent Nos.(29f to (31f are
all are residing at & Post Fursungi,
Taluka Haveli, District Pune

[(32f Shri Gulab Javanmal Bhandari,

Age Adult, Occu : Business
Residing at Bhavani Peth,
Pune 411 042] (Deletedf

[(33f Shri Narendra Hukumchand Jain

Age Adult, Occu : Business,
Residing at 857 Bhavani Peth,
Pune 411 042] (Deletedf

[(34f Sau. Anita Ramanlal Porwal

Age 48 years, Occu : Business,
Residing at Hude ark Flat No.C-103,
Bhavani Peth, Pune 411 042] (Deletedf
...Respondents
(Orig. Defendantsf

-------

Mr.S.C. Wakankar a/w. Ms. Aishwarya Bapat, for petitioner.

Mr. V.R. Kasle, for Respondent Nos.1, 3 to 7.
Mr. P.B. Bhargude a/w Mr.Sumit Sonare for Respondent No.8.
Mr. R.D. Soni and Mr. Tushar Momaiyah i/b. Ram and Co. for
Respondent Nos.9, 9-A to 9-B.
--------
CORAM : M.M. SATHAYE, J.

RESERVED ON : 3rd March, 2023

PRONOUNCED ON : 20th March, 2023

:: JUDGMENT ::

1. Notice of fnal disposal was issued in this matter on

27th January, 2020. Accordingly contesting Respondents have

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appeared. Learned counsel for the Petitioner has already deleted

the unserved respondents as noted in order dated 3rd March, 2023,

when arguments were fnally heard and concluded.

2. Rule. Rule made returnable forthwith. Mr.Kasle,

learned counsel waives service for respondent nos.1, 3 to 7.

Mr.Bhargude, learned counsel waives service for respondent no.8.

Mr.Soni, learned counsel waives service for respondent nos.9, 9-A

and 9-B. Taken up for fnal disposal with consent of parties.

3. By this petition fled under Article 226 and 227 of the

Constitution of India, the original Plaintif in Special Civil Suit

no.2375 of 2011 (“the said suit” for shortf is challenging an Order

dt. 6th June, 2019 passed by the Joint Civil Judge, Senior Division,

Pune below Exh. 185. By this order, the application of Defendant

No.6 (present Respondent no.8f for transposing her as Plaintif,

under Order 23 Rule 1A of the Civil Procedure Code, 1908 (“CPC”

for shortf is allowed and Defendant no.6 is transposed as Plaintif

in the said suit.

4. Though the Petitioner is sole Plaintif and Respondents

are Defendants in the said Suit, it appears that numbering in the

array of parties have been changed for reasons best known to

Petitioner. However, for better understanding, parties are referred

hereinafter in their original capacity.

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FACTS :

5. Some facts emerging from record, necessary for disposal of

this petition are as below. It is alleged that on 10.08.2006,

Defendant no.6 (transposed Sisterf executed a release deed and

power of attorney in favour of Defendant nos.1 and 3, who are real

brothers of Defendant no.6 and Plaintif. Based on this, Defendant

nos.1 and 3 have allegedly executed certain documents in favour

of Defendant No. 7 Developer subsequently. In 2011, present suit

is fled seeking partition and separate possession by Plaintif

(other sister - Petitionerf in respect of many suit properties

including a portion described in plaint para 1.1(1f and 1.1(2f (“the

said portion of suit property” for shortf

6. On 01.03.2012, Defendant no.6 fled written statement

claiming equal right and share in the suit properties along with

Plaintif and supported the Plaintif to that extent. However, it is

her case that her signatures were taken on certain blank papers,

and she was taken to a Government ofice under undue infuence

and with a misrepresentation that certain documents are required

to be executed for entering names of all heirs to the ancestral

property. It is her case that it has transpired that her said

signatures were misused to create false and fabricated documents.

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7. On 05.08.2013 the Trial Court granted interim

injunction in respect of few of the suit properties against

Defendant Nos. 1 to 7. The Defendant No. 7 developer, Plaintif &

Defendant nos.1 to 5 fled various Appeals From Order in this

Court (AO Nos. 1207/13, 725/13 & AO Stamp No. 35843/13f and in

those matters, a compromise was entered on 07.10.2014 between

Plaintif and Defendant nos.1 to 5 & Defendant No. 7 (Developerf.

It is the case of the Plaintif that during that compromise,

Defendant Nos. 1 & 3 have acted as power of attorney holder of

Defendant no.6. The said compromise recorded that interim

injunction granted by Trial Court will not apply to said portion of

suit property and Plaintif undertook to withdraw the said suit in

respect of the said portion of suit property and to hand over vacant

and peaceful possession thereof to Defendant No. 7 Developer for

joint development. Defendant No. 7 Developer was permitted to

delete Defendant No. 6 at his own risk from his appeal from order.

8. It appears that Defendant No. 6 fled Review Petition

Stamp No. 31561/15 and challenged the said compromise, which

according to her is executed behind her back. On 09.06.2016, this

Court disposed of the said Review with clarifcation that the said

order dt. 07.10.2014 (recording compromisef will not be binding

on Defendant no.6 and will not come in her way of agitating her

rights in the suit properties.

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9. On 4th March, 2016, Defendant no.6 fled application

Exh.185 in the said suit, seeking her transposition as Plaintif. The

Plaintif replied to the said application by fling Reply Exh. 189

contending inter alia that Defendant no.6 is trying to get a

declaration about registered Release Deed dated 10 th August,

2006, which is apparently time barred and it cannot be permitted

under law. It is contended that in a suit for partition all parties are

plaintif and defendants and as such, whatever share Defendant

No. 6 is entitled to, the Court will pass appropriate Orders and

there is no need for her transposition. On 06.06.2019, learned

Trial Judge has allowed the said application Exh.185, which is

impugned in this petition.

SUBMISSIONS :

10. Mr.Wakankar, learned counsel for the Petitioner –

original Plaintif submitted that by the impugned order, Defendant

No. 6 is allowed to be transposed in his suit, when there is confict

of interest so far as prosecution of suit for some of the suit

properties is concerned. So also, the interest of the parties viz.

Plaintif & Defendant no.6 are not identical and therefore

transposition should not be permitted. In fact interest of Plaintif

and Defendant No. 6 is separate because of the intervening events

and as such, in the peculiar facts of this case, transposition should

not have been allowed. He further submitted that the provisions of

Order 23 Rule 1A of CPC are not applied in proper perspective to

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the facts of the present case, especially about the said portion of

suit property. He contended that so far as the said portion is

concerned, during the pendency of aforesaid Appeals From Order,

the Plaintif, Defendant Nos. 1 to 5 and Defendant no.7, who is

developer, have entered into a compromise before this Court and

now there is no dispute between Plaintif and Defendant no.7

about the said portion of the suit property. He submitted that in

this peculiar situation, since the Plaintif is not interested in

prosecuting the said suit for said portion of the suit property and

since Defendant no.6 is specifcally interested in continuing her

dispute in respect of said portion with rest of the Defendants

including developer, there is clear mis-joinder of cause of action,

mis-joinder of parties, all in one place, as a result of impugned

order. He further submitted that Defendant No. 6 is free to fle her

own suit and claim whatever reliefs against whoever she wants,

and the same will be decided on its own merits including issue of

limitation that Defendant No. 6 is bound to face. He therefore

urged that the impugned Order be set aside.

11. Per contra, Mr.Bhargude, learned counsel for

Respondent no.8 (Defendant no.6f submitted that his client was

left with no option but to fle such application below Exh.185

seeking transposition in the existing suit because behind her back,

the Plaintif and Defendant nos. 1 to 5 & 7 in the aforesaid Appeals

from order, entered into compromise in the High Court. He invited

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this Court’s attention to the Order passed by this Court dated

07.10.2014 wherein certain terms of compromise have been

entered between Plaintif and Defendant nos. 1 to 5 & 7. He

further invited this Court’s attention to subsequent order dated

09.06.2016 passed by this Court in his client’s Review Petition. He

submitted that by specifc Order passed in his review, this Court

has clarifed that the order of compromise passed in said Appeals

from order are not binding on his client since his client was not

present before the Court and was deleted. He urged that this

Court has clarifed that the said Order (recording compromise as

aforesaidf will not come in the way of his client in agitating her

rights in the suit properties, including the said portion thereof. He

further submitted that all the ingredients of Order 23 Rule 1A of

CPC are satisfed and in order to protect the interest of his client,

in a suit for partition, there is no option but to transpose

Defendent no.6, which has been rightly ordered by the Trial Court.

It is his specifc submission that since Order 23 Rule 1A makes a

reference to ‘withdrawal or abandonment of suit by Plaintif under

Rule 1’, even in case of partial withdrawal of suit or part-

abandonment of suit, Rule 1A will apply and transposition can be

ordered. He further submitted that if Defendant no.6 is not

permitted to prosecute the suit (as transposed Plaintiff, his client

would face irreparable loss as her valuable rights therein would be

compromised forever. He contended that in the peculiar facts of

the case, no interference is called for in the impugned order.

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12. Mr. Soni, learned counsel for Defendant No. 7

Developer, submitted that he is only concerned with the said

portion of the suit property which his client has taken for

development from Defendant brothers, acting for themselves and

on behalf of Defendant No. 6 sister also. He submitted that the

Plaintif has given up her dispute in respect of the said portion of

suit property. He submitted that in these set of facts, Defendant

No. 6 having conficting interest, should not be permitted to thrust

herself as plaintif and keep the said portion of suit property under

litigation. He submitted that the intention of Defendant No. 6 is

not bona fde. He submitted that obviously by present application

Exh. 185, Defendant No.6 is trying to sneak a back-door entry for

disputing registered documents executed by her in favour of her

brothers, which claim is otherwise ex-facie time barred. He

submitted just as Mr. Wakankar, that Defendant No. 6 is free to fle

her own suit and the same will be decided on its own merits.

13. Mr. Wakankar, learned counsel for the petitioner relied

upon the Judgment of this Court in the matter of Kashibai

Waman Patil (D) Thr. L.Rs. Vs. Shri Taukir Ahmed

Mohammed Hanif Khan and Ors reported in 2015(6) All MR

340, in support of his case. On the other hand, Mr. Bhargude,

learned counsel appearing for Defendant no.6 relied upon the

Judgment of Apex Court in the case of R. Dhanasundari alias R.

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Rajeswari Vs. A.N. Umakanth and others reported in (2020)

14 SCC 1 in support of his submissions.

14. Therefore, the question that falls for consideration

is “whether a defendant whose interest is not identical with the

plaintif, can be permitted to be transposed as plaintif in case of

part abandonment of suit claim by the Plaintif ?” The answer is

No.

REASONS AND CONCLUSION :

15. I have heard both sides at length and carefully

considered the rival submissions. Perused the record.

16. This is a suit fled by one sister against two brothers,

their wives, mother and remaining sister, along with third persons,

purchasers etc. who have been granted rights by some of the

defendants before fling of the suit. This suit is for partition and

separate possession of shares of two brothers, two sisters and a

mother. In such a fact situation, what unequivocally emerges is

that for said portion of the suit property (described in plaint para

1.1(1f and 1.1(2f onlyf, plaintif-sister and defendants-brothers

along with mother and a developer to whom the said portion of

suit property has been transferred, have chosen to compromise

the dispute and the plaintif-sister and two brothers and mother

have chosen to let go their dispute about said portion. This fact is

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clear from the undertaking given to this Court by Plaintif-sister

that she will withdraw the suit so far as the said portion of suit

property is concerned. It is also clear from the fact that these

parties have agreed before this Court that the interim injunction,

which is granted by the Trial Court, will not operate vis-a-vis the

said portion of the suit properties. In respect of the same portion

of the suit property however, Defendant no.6 is raising serious

dispute contending that her signatures taken on blank papers on

misrepresentation and undue infuence have been misused to

create documents and she does not consent to transfer in favour of

the developer and that she has right in the said portion of the suit

property also. Defendant No. 6 has alleged collusion amongst

Plaintif and Defendant Nos. 1, 3 and 7 in fling compromise terms.

These are separate and distinct causes of action to Defendant No.

6. With such diametrically opposite interests claimed by Defendant

no.6 on one hand, and Plaintif and Defendant nos.1, 3 & 7 on the

other, it is impossible to accept that the interest of Defendant no.6

is identical with the interest of the Plaintif.

17. Relevant provision of law i.e. Order 23 Rule 1A is

quoted below for ready reference :

“1A.When transposition of defendants as plaintifs

may be permitted — Where a suit is withdrawn or

abandoned by a plaintif under rule 1, and a defendant

applies to be transposed as a plaintif under Rule 10 of

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Order I the Court shall, in considering such application,

have due regard to the question whether the applicant

has a substantial question to be decided as against any

of the other defendants.”

Interestingly within its fold, the above provision encloses

provisions of Order I, Rule 10 of CPC also.

18. Careful reading of the Judgment of the Apex Court

relied upon by the Defendant No. 6, in the matter of R.

Dhanasundari (supraf shows that the law laid down in the said

judgment is in fact supporting the Plaintif rather than Defendant

no.6. Useful reference can be made to the paragraph nos.12 and

13 of said Judgment, which are reproduced below :

“12. The present one is clearly a case answering to all the

basics for applicability of Rule 1-A of Order 23 read with
Order 1 Rule 10 CPC. As noticed, the principal cause in
the suit is challenge to the sale deed executed by
Defendant 1 in favour of Defendant 2, with the original
plaintif asserting his ownership over the property in
question. After the demise of original plaintif, his sons and
daughters came to be joined as Plaintifs 2 to 8 with
Plaintif 5 being the power-of-attorney holder of all the
plaintifs. After the suit was decreed ex parte, Plaintif 5
transferred the property in question to the aforesaid three
purchasers, who were joined as Plaintifs 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
Plaintifs 5 and 9 to 11 were later on transposed as
Defendants 3 to 6, the suit remained essentially against

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Defendants 1 and 2, that is, in challenge to the sale deed
dated 23-3-1985, as executed by Defendant 1 in favour of
Defendant 2. In regard to this cause, even if Plaintifs 5
and 9 to 11 came to be transposed as Defendants 3 to 6,
their claim against Defendants 1 and 2 did not come to an
end; rather, the interest of the existing plaintifs as also
Defendants 3 to 6 had been one and the same as against
Defendants 1 and 2.

13. In the given status of parties and the subject-matter of

the suit, when the plaintifs entered into an arrangement
with Defendants 1 and 2 and sought permission to
withdraw under Order 23 Rule 1 CPC, the right of
Defendants 3 to 6 to continue with the litigation on their
claim against Defendants 1 and 2 immediately sprang up
and they were, obviously, entitled to seek transposition as
plaintifs under Order 23 Rule 1-A CPC.”

19. The aforesaid narration by the Apex Court would

show the gist of facts and application of law that because the

interest of the existing plaintif as also defendant nos.3 to 6 in that

matter has been found as “one and the same” against contesting

Defendant nos.1 and 2 therein, the transposition order under

Order 23 Rule 1-A of the Civil Procedure Code was sustained.

Therefore the touch-stone is “one-ness of interest”. I respectfully

agree with the said proposition.

In the present case, interest of the Defendant No. 6 is not

identical with the Plaintif. Also, in that case the Plaintif was

withdrawing the suit fully and it was not a case of part-

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abandonment. In the present case, the Petitioner has not fully

abandoned her claim. In that view of the matter, the said Judgment

will not advance the case of the Defendant No. 6.

20. Perusal of the judgment in the matter of Kashibai

Waman Patil (supraf, relied upon by the Petitioner, would show

that so far as Order 23 Rule 1-A is concerned, this Court, after

considering the judgment of Jethiben Vs. Maniben reported in

AIR 1983 Guj 194 has held in para no.10 as below :

10. “…… This provision is added, as stated earlier, in

order to facilitate a pro forma defendant who has identical
interest from being denied his right if he rested on the
success of the plaintiffs suit and the plaintif wanted to
withdraw the suit……”

Useful reference can also be made to certain observations in

para no. 8 of Jethiben’s case (supraf, which are as below :

“8. …. But one thing cannot be ignored that to be

transposed as a plaintif, the defendant who claims to be
transposed must have interest identical with the interest
of the plaintif
.
.
Courts would not permit such transposition just to give a
chance to a litigant to avoid fling a suit or permit him to
take advantage of the suit fled by his adversary against
him claiming a relief against him by becoming a plaintif
and trying to bring out the averments and reliefs which
are contrary to those claimed by the original plaintif…”

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Since, in the present case, interest of the Defendant No. 6 is

not identical with the Plaintif, as discussed earlier, both these

Judgments support the case of Petitioner.

21. In view of the aforesaid discussion, this Court has no

hesitation in holding that transposition of a defendant can be

permitted in case of part abandonment of the claim by the plaintif,

provided the defendant seeking transposition has identical interest

with the plaintif vis-a-vis both, contesting defendants and subject

matter property. If there is a confict of interest between plaintif

and defendant seeking transposition, in respect of even one

defendant or in respect of even one of the suit property, then

transposition of such defendant can not be permitted. The obvious

reason for such interpretation is that if such Defendant is

permitted to be transposed in a suit, then it would virtually mean

that there will be more than one set of causes being permitted

amongst parties in one suit and that will be clearly a mis-joinder of

cause of action or a mis-joinder of parties or both. It is

unimaginable that such suit can be permitted to proceed where

one plaintif wants to let go its dispute against some of the

defendants in respect of some of the suit property and at the same

time, defendant seeking transposition wants to proceed in respect

of same subject property against the same set of defendants.

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22. Perusal of the impugned Order shows that the Trial

Judge has not considered the key aspect of one-ness of interest

amongst plaintif and defendant no.6 and has proceeded on the

footing that apprehension of defendant no.6 is not baseless about

plaintif possibly withdrawing the suit. In the present case, the

Petitioner-plaintif is not withdrawing the suit completely and is

admittedly prosecuting the same against rest of the suit properties

and against rest of the defendants. That apart, in the concluding

paragraph of the impugned Order, the Trial Judge has apparently

proceeded on the footing of inference that the conduct of the

Plaintif compromising part of the suit claim with defendant no.1

to 5 and 7 and fling of application for deletion of defendant no.7,

means that plaintif is going to withdraw full suit. This inference as

well as fnding is totally misconceived and unfounded and

therefore cannot be sustained. Impugned Order has permitted two

sets of parties having opposite interests and opposite causes vis-a-

vis part of the suit property and some of the defendants, to

prosecute the suit together, which cannot be permitted on the

touch-stone of one-ness of interest. Therefore, the impugned order

cannot be sustained and is liable to be set aside.

23. In the net result, the petition succeeds and the

impugned Order dated 6th June, 2019 passed by the Joint Civil

Judge, Senior Division, Pune below Exh. 185 in Special Civil Suit

No.2375 of 2011 is quashed and set aside.

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24. It is however clarifed that Defendant no.6 will be at

liberty to adopt appropriate legal proceedings including a

substantive suit to agitate her grievances and claim in respect of

the suit properties including the said portion thereof. If any such

proceeding is fled by Defendant no.6, then all contentions of the

both sides including that of limitation are expressly kept open to

be decided on its own merits, in accordance with law, without

being infuenced by this Order.

25. Rule made absolute in the above terms. No order as to

costs.

[ M.M. SATHAYE, J ]

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