Shankar Jain, Mr. Vishnu Shankar Jain, Mr. Parth Yadav and Ms. Mani Munjal, Advs v. INDIRA WARMAN ORS

Judgment

1. Through the present Appeal, the Appellant/Defendant No.8 assails the correctness of the Order dated 29.02.2024 [hereinafter referred to as „Impugned Order‟], whereby the prayer of the Defendant No.8 to be transposed as Plaintiff No.2 has been rejected by the learned Single Judge. Signature Not Verified Signed By:JAI NARAYAN Signing Date:22.12.2025 17:53:35 FAO(OS) No. 71/2024 Page 1 of 20

2. For the sake of convenience, the parties shall be referred to by their status and rank in the suit, i.e., CS(OS) No.2137/2006. FACTUAL MATRIX:

3. In order to comprehend the issues involved in the present case, relevant facts, in brief, are required to be noticed.

4. The genealogical chart of the family, indicating the array of parties and their corresponding position in the suit as well as in the present Appeal, is extracted hereinbelow:

5. Sh. Raghubir Singh Verma and Smt. Sushila Verma died intestate on 13.11.1989 and 20.06.2005, respectively. The immovable properties left behind by the deceased parents comprise property bearing No. A-181, Defence Colony, New Delhi; and Plot Nos.30 and 201, Okhla Industrial Estate, Phase-III, New Delhi [hereinafter collectively referred to as the „suit properties‟].

6. The underlying civil suit, CS(OS) No.2137/2006, was instituted by the Plaintiff/Respondent No.1, Smt. Indira Warman, seeking partition and division by metes and bounds of the suit properties, along with the rendition of accounts and mesne profits.

Defendant No.1/Respondent No.2 has contested the suit by Signature Not Verified Signed By:JAI NARAYAN Signing Date:22.12.2025 17:53:35 FAO(OS) No. 71/2024 Page 2 of 20 setting up an alleged Will dated 15.09.1983, purportedly executed by the late Sh. Raghubir Singh Verma. It is further alleged by Defendant No.1 that the property bearing No.A-181, Defence Colony, New Delhi–110024 was mutated by L&DO on 07.11.2000, in favour of the son of Defendant No.1, Sh. Shivi Singh Verma.

8. Defendant No.8 is one of the sisters of the Plaintiff and is the legal heir of the suit property, having a 1/9th share in the suit properties along with other movable assets. Defendant No.8, in substance, supports the case of the Plaintiff for partition of the suit properties. She has also filed another suit, CS(OS) No.2028/2009, for declaration, mesne profit and damages, which is connected with the present suit. Common issues were framed in both suits on 30.07.2013.

9. Further, Defendant No.8 has stated that Defendant No.1 sold property bearing No. 201, Okhla Industrial Estate, Phase-III, to Respondent No.14, Texaco Overseas Pvt. Ltd., and, from the sale proceeds, purchased property bearing No. 24, Okhla Industrial Estate, Phase-III, New Delhi. It is further stated by Defendant No.8 that Defendant No.1, along with his wife and son, continues to enjoy the rental income from properties bearing Nos.30 and 24, Okhla Industrial Estate, Phase-III, New Delhi.

10. At the same time, Sh. Shivi Verma had filed a probate petition vide Test Case No.78/22, which was tagged with the present suit on

18.05.2015. The common evidence is being recorded in all three cases.

11. Pertinently, the suit has been pending since 2006. The issues Signature Not Verified Signed By:JAI NARAYAN Signing Date:22.12.2025 17:53:35 FAO(OS) No. 71/2024 Page 3 of 20 have been framed, and statements of some witnesses have also been recorded. However, it is stated by Defendant No.8 that the Plaintiff is not taking a keen interest in prosecuting the case with due diligence, which prompted the Defendant No.8 to file an application, I.A. No. 9262/2011, seeking transposition as Plaintiff No.2, which was withdrawn vide order dated 30.08.2011 on a submission made by counsel that the Defendant No.8 had filed a separate suit, being CS (OS) No.2028/2009, seeking partition, whereas the said suit filed by the Defendant No.8 was confined to a claim for mesne profits and damages.

12. During the pendency of CS(OS) No.2137/2006, the suit was transferred to the District Court on account of valuation and lack of pecuniary jurisdiction. Owing to the judicial determination that the valuation exceeded Rs.2 crores, the matter ultimately stood transmitted to this Court with the directions to the Plaintiff to amend the plaint qua the valuation of the suit for purposes of pecuniary jurisdiction.

13. After its transfer, CS(OS) No. 2137/2006 was listed for the first time on 14.02.2022; however, despite repeated opportunities granted by this Court, Plaintiff failed to file the amended plaint. As a result, the suit has remained at a standstill for nearly three years, during which Plaintiff either kept changing counsel or chose not to appear.

14. It is stated by Defendant No.8 that the negligent and callous conduct of the Plaintiff has caused irreparable prejudice by depriving her of her 1/9th share in the demised properties, which are being Signature Not Verified Signed By:JAI NARAYAN Signing Date:22.12.2025 17:53:35 FAO(OS) No. 71/2024 Page 4 of 20 illegally enjoyed by Defendant No.1 and his family. It is further stated that the Plaintiff‟s persistent lack of diligence in prosecuting CS(OS) No.2137/2006 gives rise to a reasonable apprehension that the Plaintiff and Defendant No.1 are acting in concert to delay the proceedings with the intent to defeat Defendant No.8‟s lawful entitlement to her 1/9th share in the movable and immovable assets of her late parents.

15. Accordingly, Defendant No.8 filed a fresh application under Order I Rule 10(2)1 of the Code of Civil Procedure, 1908 [hereinafter referred to as „CPC‟], being I.A. No. 6058/2023, seeking transposition as Plaintiff No.2. The said application was finally heard on

29.02.2024 and, after hearing the parties, the learned Single Judge dismissed the application vide the Impugned Order, on the following grounds: i. The application was filed under Order I Rule 10(2), which deals with the impleadment of the parties, who are not a party to the suit. The right Section for seeking transposition is Order ii. XXIII Rule 1A of the CPC2. iii. The Application would be treated as being one under Order XXIII Rule 1A, and for which two conditions which permit transposition are to be fulfilled, viz. (a) either the Plaintiff dies; or (b) abandons the suit. However, these conditions are not fulfilled in the present case for invoking Order XXIII Rule 1A. 1Order I Rule 10(2) 2Order XXIII Rule 1A Signature Not Verified Signed By:JAI NARAYAN Signing Date:22.12.2025 17:53:35 FAO(OS) No. 71/2024 Page 5 of 20

16. It is also significant to note that at the hearing of I.A. No. 6058/2023, the Plaintiff, having engaged a new counsel, sought time to file the amended plaint. The learned Single Judge, while granting time, recorded that despite directions to file the amended plaint within two weeks, the Plaintiff had failed to do so for over two years and one month, and accordingly imposed costs of Rs. 1,00,000/- vide the Impugned Order.

17. Aggrieved by the Impugned Order, Defendant No.8 has filed the present Appeal. CONTENTIONS OF THE PARTIES:

18. Heard learned Counsel representing the parties at length and, with their able assistance, perused the paperbook along with the record of the suit.

19. Learned Counsel for the Appellant/Defendant No. 8 has made the following submissions: i. The Court has power to pass order for transposition of party in exercise of powers under Order I Rule 10(2) either suo motu or on the application of the party. ii. The Impugned Order restricts the Court‟s plenary power under Order I Rule 10(2) to transpose parties at any stage of the proceedings to ensure effective adjudication of the suit. iii. In partition suits involving co-heirs with aligned interests, transposition of a supportive Defendant as co-Plaintiff is a procedural tool to advance justice, especially where the original Signature Not Verified Signed By:JAI NARAYAN Signing Date:22.12.2025 17:53:35 FAO(OS) No. 71/2024 Page 6 of 20 Plaintiff shows laxity, avoiding suit abandonment under Order XXIII. Reliance is placed upon R.S. Maddanappa (Deceased) iv. After Him By Legal Representatives v. Chandramma & Anr.3; Smt. Saila Bala Dassi v. Smt. Nirmala Sundari Dassi & Anr.4; and Hulas Rai Baijnath v. K.B. Bass & Co. Ltd.5.

20. Learned Counsel for the Respondent Nos.2 to 6/Defendant No.1, while contending that the learned Single Judge has rightly dismissed the application for transposition as Order XXIII Rule 1A is the sole repository for the transposition of the Defendant as Plaintiff.

21. No other submissions have been made by the learned Counsel representing the parties. ANALYSIS AND FINDINGS:

22. At the outset, the issues that arise for consideration in the present Appeal are delineated hereinbelow: I. Whether Order XXIII Rule 1A is in derogation of Order I Rule 10(2)? II. Whether the learned Single Judge erred in holding that Order XXIII Rule 1A is the single repository of transposition of parties from Plaintiff to Defendant and vice-versa? III. Whether Plaintiff can only oppose the application for the transposition of Defendant as Plaintiff?