Noushad v. Sarojam Thankappan and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 23RD DAY OF JANUARY 2018 / 3RD MAGHA, 1939** ## **OP(C).No. 3514 of 2017 (O)** **OS 77/2009 of MUNSIFF-MAGISTRATE COURT, PARAVOOR.** **------------** ## **PETITIONER** **NOUSHAD, AGED 51 YEARS, S/O.HAJI ABDUL RAHMAN, NOUSHAD MANZIL, CHATHANOOR.P.O., KOLLAM-691 572.** **BY ADVS.SRI.M.GOPIKRISHNAN NAMBIAR** **SRI.P.GOPINATH** **SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS** **SRI.PAULOSE C. ABRAHAM.** ## **RESPONDENTS** **1. SAROJAM THANKAPPAN, AGED 68 YEARS, D/O.LEKSHMI, PATTARAZHIKATH VEEDU, THAZHAM CHERRY, CHATHANOOR.P.O, KOLLAM-691 572.** **2. THANKAPPAN, AGED 83 YEARS,** - **S/O.PADMANABHAN, PATTARAZHIKATH VEEDU, THAZHAM CHERRY, CHATHANOOR.P.O. KOLLAM-691 572.** **3. ARSHAD, AGED 45 YEARS, S/O.HAJI ABDUL RAHMAN, NOUSHAD MANZIL, CHATHANOOR.P.O., KOLLAM-691 572.** **4. SAJAD SHAH, AGED 40 YEARS, S/O.HAJI ABDUL RAHMAN, NOUSHAD MANZIL, CHATHANOOR.P.O., KOLLAM-691 572.** **5. KRISHNA BHASKAR, AGED 53 YEARS** - **D/O.BHASKARAN, GANGA GARDENS, CHATHANOOR.P.O., KOLLAM- 691 572.** **6. SURESH BABU, AGED 69 YEARS, S/O RAGHAVAN, INJAZHIKAM, CHATHANOOR THAZHAM CHERRY, CHATHANOOR.P.O. KOLLAM- 691 572.** **R1 - R2 BY ADVS SRI.R.MOHANA BABU SRI.M.AJITH (KARICODE).** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 23-01-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Hr....** **OP(C).No. 3514 of 2017 (O)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1 THE TRUE COPY OF THE PLAINT DATED 6.4.2009, FILED ALONG WITH THE LIST OF DOCUMENTS AND SCHEDULE OF PROPERTY ON THE FILES OF THE MUNSIFF-MAGISTRATE COURT, SOUTH PARAVUR AS O.S NO 77/2009. EXHIBIT P2 THE TRUE COPY OF THE WRITTEN STATEMENT CUM COUNTER CLAIM DATED 20.2.2010, FILED BY RESPONDENTS 1 AND 2 BEFORE THE MUNSIFF-MAGISTRATE COURT, SOUTH PARAVUR. EXHIBIT P3 THE TRUE COPY OF SETTLEMENT DEED NO.4742/1/2010 DATED 23.9.2010 OF SRO CHATHANOOR EXECUTED BY MAHESWAR IN THE NAME OF HIS SON SANTHOSH MAHESWAR. EXHIBIT P4 THE TRUE COPY OF SALE DEED NO.9/2015/1 DATED 1.1.2015 OF SRO CHATHANOOR EXECUTED BY SANTHOSH MAHESWAR IN FAVOUR OF THE PETITIONER. EXHIBIT P5 THE TRUE COPY OF THE AFFIDAVIT AND APPLICATION DATED 20.7.2017 AS IA NO.1183/2015 IN SO NO.77/2009. EXHIBIT P6 THE TRUE COPY OF THE OBJECTION DATED NIL FILED BY RESPONDENTS 1 AND 2 TO THE EXHIBIT P5 APPLICATION. EXHIBIT P7 THE TRUE COPY OF THE ORDER DATED 24.10.2017, IN IA NO.1183/2015 IN OS NO.77/2009 PASSED BY THE MUNSIFF-MAGISTRATE COURT, SOUTH PARAVUR.** ## **RESPONDENT(S)' EXHIBITS** **EXHIBIT R1(A) A TRUE COPY OF THE ORDER IN O.S 77/2009 DATED 23-05-2016 OF THE MUNSIFF COURT SOUTH PARAVOOR.** **EXHIBIT R1(B) A TRUE COPY OF THE B DIARY IN O.S 77/2009 FROM THE DATE OF SUIT TILL 23-05-2016 OF THE MUNSIFF COURT, S. PARAVOOR.** **// TRUE COPY//** **P.S TO JUDGE.** **Hr.....** **“CR”** ## **ALEXANDER THOMAS, J.** -------------------------------------------------- OP(C) No. 3514 of 2017 -------------------------------------------------Dated this the 23[rd] day of January, 2018 ## **J U D G M E N T** The order under challenge in this Original Petition (Civil) filed enabling the provisions contained under Article 227 of the Constitution of India is one at Ext.P7 dated 24.11.2017 rendered by the trial court concerned (Munsiff-Magistrate Court, South Paravur), whereby the application filed by the petitioner/fourth defendant in the Original Suit for transposition as additional plaintiff has been rejected by the court below on the ground that the plea for transposition cannot be considered. The plea for transposition has been rejected as per Ext.P7 mainly on the ground that the suit has already been dismissed as not pressed by the original plaintiff and that without reviewing the said order dismissing the suit as not pressed, the plea for transposition cannot be considered. 2. Registry has reported that the conditions in proviso to Rule 51(2) of the Kerala High Court Rules have been duly complied with in respect of service of notice on respondents 3 & 4. Accordingly, it is declared that service of notice on respondents 3 & 4 is duly completed. OP(C) No. 3514 of 2017 **==> picture [20 x 8] intentionally omitted <==** 3. Heard Sri.Joson Manavalan, learned counsel for the petitioner/fourth defendant, and Sri.R.Mohana Babu, learned counsel for respondents 1 & 2 (defendants 1 & 2). Though notice has been sent to respondents 3 & 4 (defendants 5 & 6), there is no appearance for those parties. It is submitted by the learned counsel appearing for the petitioner that respondents 5 & 6 are defendants 7 & 8 in the Original Suit and they could be deleted from the party array. Accordingly, it is ordered that notice to respondents 5 & 6 will stand dispensed with. 4. The petitioner herein is the fourth defendant in OS No.77/2009 on the file of the Munsiff-Magistrate Court, South Paravur, Kollam District. The suit was filed for restoring the plaint B schedule pathway to its original position and to remove the encroachments in plaint B schedule pathway. It is stated that the plaint B schedule pathway is the only way to the plaint A schedule property and that plaint A schedule property belonged to one Sri.Maheswar, the original plaintiff in OS No.77/2009. He settled plaint A schedule property to his son, Sri.Santhosh Maheswar, who got himself impleaded as additional plaintiff in the said suit. It is stated that defendants 3 to 7 are neighboring property owners and that no relief is sought for as against defendants 3 to 7 in the original suit and that reliefs are sought for only as against defendants 1 & 2. Respondents 1 & 2 OP(C) No. 3514 of 2017 **==> picture [20 x 8] intentionally omitted <==** herein/defendants 1 & 2 in the suit had raised a counter claim to fix the boundary of plaint B schedule pathway and plaint A schedule property. During the pendency of the suit, the additional plaintiff sold plaint A schedule property to the petitioner herein. Thereafter, the additional plaintiff did not press the suit on 18.03.2015. In such circumstances, the petitioner herein/fourth defendant had filed Ext.P5 (IA No.1183/2015) in the said OS to seek himself to be transposed as additional plaintiff in the suit so as to proceed with the suit. The court below has dismissed the said plea as per the impugned Ext.7 order, mainly on the ground that as the suit was earlier dismissed as not pressed on 18.03.2015, the plea for transposition could be considered only if the said order dismissing the suit as not pressed is reviewed. It is this order at Ext.P7 that is under challenge. 5. It is not in dispute that the present OS No.77/2009 was dismissed as not pressed on 18.03.2015 and the case has been posted for evidence in the counter claim. It is thereafter, Ext.P5 application for transposition was filed. The provisions of Order XXIII Rule 1A CPC regulate matters in respect of transposition of parties and the said provision reads as follows: “Rule 1A. 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.” OP(C) No. 3514 of 2017 ..4.. 6. This Court, in **Ramakrishnan** v. **Thanka** reported in [2000 (3) KLT 886], has held that the plaintiff has a right to abandon his suit at any stage, but, if there is any substantial question to be decided in the suit, the court definitely has the power to allow transposition so that the suit can be pursued and further, that abandonment can be either through positive submission or through silence leading to lapse. If one allows his suit to go for default, that will be abandonment by silence. It is also open to him to abandon the suit by making a direct request to the court after due appearance. By stating “not pressed” in the instant case, what the plaintiffs have achieved is actually abandonment of the suit and in such situation, Order XXIII Rule 1A of the CPC would certainly apply. It is also further held that even if Order XIII Rule 1A does not apply, the suit would be restored if it is essential for enabling the petitioner to realize or effectuate his rights under Order XIII Rule 1A of the CPC and his right cannot be defeated by stating that the suit is no more alive. Whether the suit is alive or not, if the suit has to be allowed to be proceeded with as contemplated in Order XXIII Rule 1A and if the process of restoration is essential, therefore, the court has the power to order such restoration even under Section 151 of the CPC. It would be profitable to refer to paragraphs 4 to 6 of the judgment of this Court in **Ramakrishnan** 's OP(C) No. 3514 of 2017 ..5.. ## case ( _supra)_ , which read as follows: “4. It is true that the plaintiff has a right to abandon his suit at any stage. But if there is any substantial question to be decided in the suit, the court definitely has the power to allow transposition so that the suit can be pursued. The present suit is one for partition and each of the parties, whether arrayed as plaintiff or defendant, if he is a sharer, is in the position of a plaintiff as far as the relief of partition is concerned. Even if the original plaintiff abandons the suit, the defendant - sharers definitely have a right to proceed with the suit so that the substantial question of partition can be got decided in the same suit. The contention of the revision petitioners is that the relief can be worked out by the respondents in a fresh suit for partition. Of course, that is also possible; but that does not stand in the way of a defendant working out his rights under O. XXIII R. 1-A of the CPC so that unnecessary wastage of time and expenses can be avoided. It is pertinent in this regard that in the instant case the 6th defendant is a party who has already paid court fee for separate allotment of his share. If a fresh suit is directed, she may have to incur the same expense all over again. The suit is already 9 years old and if any fresh suit is directed, probably similar delay may be involved therefore also. 5. The learned counsel for the revision petitioners submits that the dismissal of the suit in the instant case was for the reason “not pressed” and that it cannot be taken as 'abandonment'. According to him, abandonment will arise only when the original plaintiff fails to appear in court and if the suit is dismissed for default. I do not find any force in the said argument. Abandonment can be either through positive submission or through silence leading to lapse. If one allows his suit to go for default, that will be abandonment by silence. It is also open to him to abandon the suit by making a direct request to the court after due appearance. By stating “not pressed” in the instant case what the plaintiffs have achieved is actually abandonment of the suit and hence O. XXIII R. 1-A of the CPC certainly applies to the facts of this case. 6. Technically speaking, an application under O. IX R. 9 of the CPC can be filed only by a plaintiff; but here is a case where the suit is one for partition and in that sense even the 6th defendant is in the position of a plaintiff. That apart, even if O. IX R. 9 of the CPC does not apply here, the suit can definitely be restored if it becomes essential for enabling the petitioners to realise or effectuate their rights under O. XXIII R. 1-A of the CPC. His right cannot be defeated by stating that the suit is no more alive. Whether the suit is alive or not, if the suit has to be allowed to be proceeded with as contemplated in O. XXIII R. 1-A and if the process of restoration is essential therefore, the court has power to order such restoration even under S. 151 of the CPC. His right under the provision cannot be defeated through technical contentions.” 7. Further, this Court has held in the decision in **K.K.Abraham** v. **Joseph Varghese & Another** [AIR 2003 Kerala 1] that the application filed by the respondent for transposing himself as an OP(C) No. 3514 of 2017 **==> picture [20 x 8] intentionally omitted <==** appellant cannot be rejected on the mere ground that the application was filed in an appeal and not in a suit, since the provisions of Order XXIII Rule 1A read with Order 1 Rule 10 CPC will apply to a proceeding in appeal as well. A respondent in an appeal is entitled to seek himself to be transposed as an appellant, if he satisfies the conditions otherwise. 8. It is also held in **Madhavan Pillai** v. **Vasu Pillai** [(1989) 1 KLT 168] that even a party, who is declared as _ex parte,_ is entitled to invoke such a provision under Order XXIII Rule 1A and whatever it be, once an application for transposition is allowed, it will not be necessary to set aside the order declaring him _ex parte_ because his right thereafter is that of an appellant to prosecute the appeal/suit as the case may be. It is profitable to refer to paragraphs 7 & 12 of the judgment of this Court in **K.K.Abraham** 's case ( _supra)_ , which read as follows: “7. Even though O.XXIII R. 1A and O.I R.10 C.P.C. refers to the expression 'suit' and the 'plaintiff', it cannot, for that reason, be sought to restrict the application of the provision to a proceeding in a suit alone since the appeal is the continuation of the proceedings of the suit and in the absence of any separate provision to deal with such a situation it has to be held that the principles contained under O.XXIII R.1A and O.I R.10 must apply to the proceedings in appeal as well. In this connection, reliance was placed on the decision of the Madras High Court in Govinda Iyer v. Kumar (AIR 1980 Madras 232) wherein it has been held that by virtue of S. 107 and O.XXIII R. 1A the Court can transpose a respondent as appellant when the appellant seeks to withdraw or abandon the appeal. A similar contention was raised by the contesting respondents in that case. It was contended that O. XXIII R. 1A of the Code of Civil Procedure will apply only to a suit and not to a Second Appeal. However, repelling the contention the court held that in view of S. 107 CPC procedural provision applicable to suits can also be applied to appeals or second OP(C) No. 3514 of 2017 ..7.. appeals as far as it is practicable. In such circumstances, it was held that a court has power to transpose the respondent as appellant in suitable cases when the appellant seeks to withdraw or abandon the appeal. Hence the application filed by the petitioner herein for transposing himself as an appellant cannot be rejected on the mere ground that the application was filed in an appeal and not in a suit, since as already observed above, the provisions of O. XXIII R.1A read with O.1 R.10 C.P.C.will apply to a proceeding in appeal as well. A respondent in an appeal is entitled to seek himself to be transposed as an appellant, if he satisfies the conditions otherwise. ## xxx xxx xxx 12. C.R.P. 1870 of 2000 does not call for a separate order. If the petitioner succeeds and if he is permitted to transpose himself as an appellant, then as held by this Court in Madhavan Pillai v. Vasu Pillai (1989 (1) KLT 168) even a party who is declared ex parte is entitled to invoke such a right under O. XXIII R. 1A. Whatever it be once an application for transposition is allowed it will not be necessary to set aside the order declaring him ex parte because his right thereafter is that of an appellant to prosecute the matter.” ## 9. Earlier, this Court in the judgment dated 17.12.1988 in **Madhavi** ## **Amma** v. **Sailaja** (CRP No.1683/1988) [1988 (3) Civil CC (Kerala)] ## has held in paragraph 3 as follows: “3. Order 23 Rule 1(A) governs transpostition of defendants as plaintiffs. This rule provides that where a suit is withdrawn or abandoned by a plaintiff under Rule 1, and a defendant applies to be transposed as plaintiff under Rule 10 of Order 1, 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 conditions that should be satisfied in order to invoke this provision are: (1) the applicant must be a defendant, (2) the plaintiff must have either withdrawn or abandoned the suit under Sub-rule 1 (of order 23), (3), the applicant - defendant has a substantial question to be decided as against any of the other defendants.” - 10.Therefore, in the light of these aspects and from a reading of the impugned order, this Court is constrained to hold that the view taken by the trial court in the impugned Ext.P7 order that the plea for transposition cannot be considered so long as the dismissal of the suit as not pressed is not reviewed, is clearly untenable and unsustainable. OP(C) No. 3514 of 2017 **==> picture [20 x 8] intentionally omitted <==** A dismissal of the suit as not pressed would amount to abandonment of the suit by the plaintiff as held in the decisions herein above and therefore, the party is entitled to seek effective consideration of his plea under Order XXIII Rule 1A CPC. The crucial and relevant aspects, which flow out of the legal position settled by this Court in the aforesaid reported decisions, have not gained the attention of the trial court and therefore, the impugned order is vitiated on account of the fact that the relevant aspects have not been adverted to. 11.Sri.R.Mohana Babu, learned counsel for respondents 1 & 2, submits that due to the lapse on the part of the original plaintiff in not taking steps as against defendants 3 to 7, the trial court has dismissed the suit as against defendants 3 to 7 on 23.11.2010 and that therefore, it cannot be said that the petitioner/fourth defendant was in the defendants' array in order to seek transposition. 12.Sri.Joson Manavalan, learned counsel for the petitioner/fourth defendant would urge that the very fact that the court below had dismissed the suit as against defendants 3 to 7 on account of the failure of the plaintiff to take steps against them would show that the original plaintiff had abandoned the suit as against defendants 3 to 7 and that therefore, a party like the petitioner/fourth defendant is eminently suitable to seek transposition under Order XXIII Rule 1A OP(C) No. 3514 of 2017 **==> picture [20 x 8] intentionally omitted <==** CPC. This Court need not consider the merits of the rival contentions. 13.Sri.R.Mohana Babu, learned counsel for respondents 1 & 2, would also contend that the plea for transposition cannot be allowed at the instance of the petitioner, inasmuch as the petitioner has admittedly purchased the property in question during the pendency of the litigation and without the permission of this Court and that it has been held by the apex court in **Bibi Zubaida Khatoon** v. **Nabi Hassan Saheb & Another** [2004 (1) SCC 191] that a _tranferee pendente lite_ without leave of the Court cannot, as of right, seek impleadment as a party in the suit. 14. _Per contra,_ Sri.Joson Manavalan, learned counsel for the petitioner, would contend that so long as the party fulfills the three vital conditions stipulated for consideration of the right under Order XXIII Rule 1A CPC as referred to in para 3 of the judgment of this Court in 1988 (3) Civil CC (Kerala), he is entitled to get his plea for transposition is considered. Further, the petitioner contends that the above arguments of _lis pendens_ transfer has no relevance in the facts of this case. In the instant case, all the above three conditions are fulfilled and more particularly, the petitioner/fourth defendant has a substantial question to be decided as against the other defendants, especially defendants 1 & 4, inasmuch as he is the present owner of OP(C) No. 3514 of 2017 **==> picture [26 x 8] intentionally omitted <==** the property in question. This Court need not go into these rival contentions of the parties in the nature of the orders proposed to be passed in this Original Petition. 15.As the impugned order at Ext.P7 has not taken into consideration the above crucial aspects stated herein above, the said order is to be interdicted and accordingly, Ext.P7 will stand set aside. Ext.P5 (IA No.1183/2015) decided therein will stand restored to file of the trial court concerned. The court below will consider the matter afresh and after granting reasonable time to be heard to the parties concerned, will pass orders on the IA in accordance with law. Needful in this regard shall be ordered by the court below without much delay, preferably within a period of four weeks from the date of production of a certified copy of the judgment. The petitioner shall produce a certified copy of the judgment before the Munsiff-Magistrate Court, S. Paravur for information. With the above observations and directions, the Original Petition (Civil) will stand disposed of. Sd/- **ALEXANDER THOMAS JUDGE** bka/ //True copy// PA to Judge