Order 23 CPC | Defendant Can Be Made Plaintiff Upon Partial Withdrawal Of Suit If No Conflict Of Interest With Original Plaintiff: Bombay High Court

Justice MM Sathaye set aside a Civil Court order allowing a defendant to be transposed as a plaintiff in a partition suit despite there being a conflict of interest with the original plaintiff.

“transposition of a defendant can be permitted in case of part abandonment of the claim by the plaintiff, provided the defendant seeking transposition has identical interest with the plaintiff vis-a-vis both, contesting defendants and subject matter property. If there is a conflict of interest between plaintiff 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 court held.

If there is a conflict of interest in respect of even one of the suit properties, then transposition of defendant as a plaintiff cannot be permitted, the court held.

The court reasoned that if such a transposition is allowed, there will be more than one set of causes amongst parties in the same suit. This will result in mis-joinder of cause of action or misjoinder of parties or both.

The petitioner was the sole plaintiff in a suit for partition and separate possession of ancestral property against her two brothers, sister, mother, and a developer. She challenged the execution of a deed by her brothers in favour of the developer in respect of a portion of the properties.

The trial court granted an interim injunction for some of the suit properties against the defendants. The defendants filed various appeals and entered into a compromise with the plaintiff-petitioner for those matters. In the compromise, the petitioner agreed to hand over the possession of the portion of the property to the developer for join development and withdraw her suit to the extent of that portion. The parties also agreed that the interim injunction will not operate on that portion.

Petitioner’s sister, who was also a defendant, claimed equal rights and share in the suit properties and supported the petitioner’s case to that extent. However, she also claimed that the two brothers took her signatures on certain blank papers and got her to transfer her right in one portion of suit properties on the pretext that the documents are required for entering names of all heirs in the property.

The sister filed a review petition against the compromise claiming that it was executed behind her back. The court held that the compromise will not be binding on her.

The sister filed an application seeking to be made a plaintiff in the partition suit. The trial court allowed her application and transposed as a plaintiff. The petitioner challenged this order in the present appeal.

The court noted that while the petitioner, two brothers and mother chose to compromise about the portion of the property, their sister is raising a serious dispute. She has also claimed right on that portion of the suit properties and alleged collusion among the petitioner, her brothers and the developer.

Therefore, the cause of the sister is diametrically opposite to the petitioner and the brothers, the court said.

Under Order 23 Rule 1A of the CPC, if a plaintiff abandons the suit, the court can allow a defendant to become the plaintiff if the defendant has a substantial question to be decided against the other defendants.

The court further noted that the petitioner-plaintiff is not abandoning her claim and withdrawing the suit completely. She is pursuing it in respect to the rest of the properties and against rest of the defendants.

“It is unimaginable that such suit can be permitted to proceed where one plaintiff 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”, the court opined.

Trial court has permitted two sets of parties having opposite interest to prosecute the suit together which cannot be allowed, the court held.

The court clarified that the petitioner’s sister has the liberty to pursue appropriate proceedings to claim her rights in the suit properties including the portion in respect of which the other parties have compromised.

Case no. – Writ Petition No. 10012 of 2019

Case Title – Nalini @ Madhavi Madhukar Murkute v. Deepak Manohar Gaikwad and Ors.

Citation: 2023 LiveLaw (Bom) 172