O. 23 R.1A CPC | Defendants Cannot Be Transposed As Plaintiffs Without Substantial Question Of Law Or Abandonment Of Suit: Jharkhand High Court

The Jharkhand High Court has clarified the application of Order XXIII Rule 1A of the Code of Civil Procedure (CPC), reaffirming that defendants can only be transposed as plaintiffs in two specific situations: first, when the plaintiff has either withdrawn or abandoned the suit and second, when the defendant has a substantial question of law to be decided against another defendant.

Justice Subhash Chand, in a single bench ruling, reiterated, “Taking into consideration the very provisions of Order XXIII Rule 1A of the CPC, it is evident that defendants may transpose as plaintiff in a suit only in the circumstances; firstly when the plaintiff has withdrawn the suit or abandoned the suit and secondly when the defendant has substantial question of law to be decided against any other defendant.”

The provision of Order XXIII Rule 1A of the CPC reads as under:

“1-A. When transposition of defendants as plaintiffs may be permitted- Where a suit is withdrawn or abandoned by a plaintiff under Rule 1, and a defendant applies to be transposed as a plaintiff under Rule 10 of Order I, the Court shall, in considering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.”

The ruling came in response to a Civil Miscellaneous Petition challenging an order by the Civil Judge (Senior Division)-XI, Ranchi, in an Original Suit. The petition was filed by the plaintiff to recall an earlier order, which was rejected.

The petitioner's counsel submitted that the plaintiff had originally filed the suit for partition against three co-sharers, including the Deputy Commissioner of Ranchi as a defendant. During the pendency of the suit, defendants No.1 (the plaintiff's mother) and defendants No.2 and 3 passed away, but no substitution was sought since all legal heirs were already on record.

Defendants No.2 and 3, Tej Lal Bhagat and Dharmesh Kumar Bhagat, applied under Order I Rule 10 of the CPC to transpose themselves as plaintiffs in the original suit. The trial court allowed their application, which was subsequently challenged by the plaintiff on the grounds that such transposition was impermissible. The trial court rejected the plaintiff's application, prompting the petitioner to approach the High Court.

Alternatively, the counsel appearing for the opposing parties submitted that the trial court's decision to allow transposition was error-free, arguing that the defendants sought to separate their respective shares in the jointly owned and possessed property, which justified the transposition.

However, the High Court held, “In the case in hand, the plaintiff who has filed the suit for partition has neither withdrawn the suit nor has abandoned the same. The defendant(s) has not shown in his application any substantial question of law to be adjudicating against another defendants. In the suit in question both the defendants have sought transposition as plaintiff and no other defendant is left in the suit except the Deputy Commissioner, Ranchi who is a formal party in the suit. The learned Trial Court without recording any reasons allowed the application for transposition which is not found in view of the spirit of Order XXIII Rule 1A of C.P.C, reason being, the plaintiff, who has filed the suit for partition declaring his share in the property of joint ownership and possession and also the separate possession on his share of 1/3rd which he has claimed.”

The Court further clarified that if the defendants wished to secure separate possession of their 1/3rd shares, they should seek amendment in their written statements to claim this relief, accompanied by the necessary court fees.

Accordingly, the High Court allowed the Civil Miscellaneous Petition and set aside the impugned order of the trial court.

Case Title: Sanjeev Bhagat vs Tej Lal Bhagat and Anr

LL Citation: 2024 LiveLaw (Jha) 157

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