High Court · 2012

The order dated 7/11/08 is an order by which a transposition petition fi led by pro-forma defendant No.7 for transposing him as plaintiff from pro-forma defendant was rejected. Order dated 18/8/08 is an order by which suit was direct ed to proceed ex-parte against the pro-forma defendant Nos. 6 and 7. Order date d 25/9/08 is an order by which the prayer of the plaintiff for summoning an offi cial witness from the office of the Sub-Registrar, Kamrup was allowed. Order dat ed 2/3/09 is an order by which prayer of the pro-forma defendants to contest the suit by filing written statement was rejected. The said orders dated 18/11/08, 25/9/08, 7/11/08 and 2/3/09 are reproduced below:- 18/8/08 (cid:28) Plaintiff represented. Pro-defendant 6 & 7 are represented but they ha ve not submitted any w/s. Suit shall proceed exparte. Plaintiff come prayer for calling certain record. Fixing 10/9/08 for SBPH. (cid:29) 25/9/08 (cid:28)The plaintiff applied for summoning a official witness from the office of the Sub-Registrar, Kamrup. The suit is proceeding exparte against the defenda nts, the pray of plaintiff stands allowed. Steps for summoning be taken. Fixing 7/11/08 for PW & official witness. (cid:29) 7/11/08 (cid:28)Plaintiff counsel pray for another opportunity to summon for official w itness on causes shown prayer is allowed. There is another petition which is pending for disposal. The proforma defendant No.7, has entered appearance in this case; and ha s applied for transposing him as plaintiff. Heard the learned counsel for the proforma defendant No.7. The plaint reveal that plaintiff causing action for filing this suit for a land measuring 2 katha 1‰ Lechas covered by Dag No.216, and to apprehend disp ossession from his purchased land, of the hands of the defendants. The proforma defendant No.7 claims, he also has a title to the land meas uring 1 katha 10 lechas falling in the same dag. Since he has title to the land falling under the suit dag he be impleaded on plaintiff. I am afraid whether such a file can be a cause for transposition as plai ntiff. At least in the present case, the proforma defendant No.7 has not even wh ispered anywhere, that he too apprehends dispossession and hence he needs declar ation for his title. Secondly, his transposition as plaintiff will complicate th e plaintiffs suit, since the schedule of the suit land has to be changed and the re is every possibility of misjoinder of causes of action. Therefore, under the circumstances set forth in the prayer for transposi tion, no case is made out for transposition of proforma defendant No.7 is plaint iff. Hence the prayer is rejected. Fixing 8-12-08 for official witness. (cid:29) 2/3/09 The suit was posted for arguments. Counsel for the plaintiff approached to argue the case, but the proforma defendant No.6 and 7 filed a petition No.225 7/09 stating that they had filed an application in this suit for transposing the mselves the plaintiffs, but the Court rejected the prayer by order dated 7.11.08 , but thereafter the proforma defendant were not allowed to file written stateme nt, hence they now pray for an opportunity to contest the suit by filing the wri tten statement. I have heard the counsel for both sides. I perused the record. Record reveals that on 23.7.08, proforma defendants 6 & 7 appeared and w ere given opportunity to file w/s, which was allowed fixing 18.8.08 for written statement by them on 18.8.08, the proforma defendants 6 and 7 was found absent, hence the suit proceeded exparte against them. The proforma defendant No.7 the filed an application for transposing him as plaintiff in this suit, but the prayer was rejected vide order dated 7.11.08 . Fixing the suit for official witness. The suit was preceding exparte aga inst all other defendants, hence the suit was therefore refixed for exparte hear ing and the evidence has already been adduced. Now, therefore, the prayer of the proforma defendants 6 & 7 cannot be al Secondly, the prayer for transposing the defendant as plaintiffs has alr lowed for the following reasons: i) Firstly, because, the time limit for filing w/s has already expired, eve n if the date of this first appearance on 23.7.06 is taken into account. The sui t is already preceding exparte against them. ii) eady been rejected and that order stands. Hence, the petition No.2257/08 stands rejected. Suit be posted for arguments. Fixing 7/3/09 for arguments. (cid:29) The present petition is filed before this Court by pro-forma defendant No 6 & 7 in the suit. The plaintiff/respondent No.1 filed the suit for declaration, confirmation of po ssession and permanent injunction in respect of a plot of land measuring 2 katha s ‰ lechas covered by Dag No.216 of K.P.Patta No.42 of Village Tetelia under Mou za Jalukbari. The total area of land in Dag No.216 is 1 B 3 katha 1 Lechas. The suit was filed as the defendant No.1, who is the son of the vendor of the plaint iff, along with defendant Nos. 2 and 3, were contemplating to sell the suit land and as they started claiming the land to be their own land, it clouded the righ t, title and interest of the plaintiff. By an order dated 23/7/08, the suit was directed to be proceeded ex-parte agains t the petitioners. However, later on, on that very date, the petitioners prayed for vacating the ex-parte order and accordingly, ex-parte order was vacated and 18/8/08 was fixed for written statement by pro-forma defendant Nos. 6 and 7. On 18/8/08, the pro-forma defendant Nos 6 and 7 did not submit any written state ment and accordingly, once again, the suit was directed to proceed ex-parte agai nst them. On 18/8/08, both pro-forma defendantt Nos. 6 and 7 filed similar appli cations for their transposition as plaintiff from pro-forma defendant. It was st ated that both of them have absolute right and title over land measuring 1 katha 10 lechas each in Dag No.216. The transposition was prayed for on the ground of their having right, title and interest in respect of their respective land. In the said applications, it is stated that the plaintiff had purchased a plot of land measuring 2 kathas 4 leachas from the pro-forma defendant No.4. However, th e case of the plaintiff is that he had only purchased 2 katha ‰ lechas. Heard Mr. B.N. Sarma, learned counsel for the petitioners and Mr. P.K. Deka, le arned counsel appearing for respondent No.1. Mr. Sarma submits that the learned trial Court committed manifest illegality in passing the order dated 7/11/08. It is contended by him that in the facts and ci rcumstances of the case, when the pro-forma defendant No.7 also had a plot of la nd in the suit Dag, the learned trial Court ought to have allowed transposition of pro-forma defendant No.7 as plaintiff. It is also submitted by him that the o ther application filed by pro-forma respondent No.6 making similar prayer has no t even been disposed of and yet, the suit was posted for arguments. It is also s ubmitted by him that the learned Court below ought to have granted opportunity t o the petitioners to file written statement. It is submitted by him that as appl ications were filed on 18/8/08 for transposition as plaintiff, i.e, the date fix ed for filing written statement, the learned Court below ought not to have passe d the impugned order dated 18/8/08 directing the suit to proceed ex-parte agains t them. Even the order dated 2/3/09 is also vitiated on the ground that the grou nds for rejecting the prayer of the petitioners to allow them to file written st atement are wholly mis-conceived, he submits. Mr. P.K. Deka, learned counsel appearing for respondent No.1/plaintiff submits t hat if at all right, title and interest of the petitioners is clouded, they coul d have filed independent suit and merely because they had also purchased plots o f land in the same suit dag, the same cannot be a ground for them to be transpos ed as plaintiffs. He also submits that Order 23 Rule 1 A of the CPC is not at al l attracted in the facts and circumstances of the case for transposition of the petitioners as plaintiffs. The learned counsel submits that it was the bounden d uty of the petitioners to have filed an appropriate application on 8/8/08 in the suit praying for time to file written statement if they were unable to submit t he same on that date on any account. It is submitted by him that no such applica tion was filed by them, as a result of which, the learned Court below had no opt ion but to proceed with the matter ex-parte as against the petitioners. It is al so pointed out by him that at no point of time, the petitioners prayed for vacat ing the said ex- parte order and the suit was all along proceeding ex-parte as a gainst the petitioners and therefore, the learned Court below was wholly justifi ed in rejecting the prayer of the petitioners to permit them to file their writt en statement. Responding to the submissions of Mr. Sarma that the application of pro-forma def endant No.6 for transposing him as plaintiff was not disposed of, he submits tha t a perusal of the order dated 2/3/09 would go to show that their applications f or transposing themselves as plaintiffs was rejected by the Court by order dated 7/11/08. Even if the said application was not disposed of, the same will have n o bearing and for the reasons recorded while disposing of the application filed by pro-forma defendant No.7, it can be construed that by necessary implication, the same had also been dismissed. I have heard the learned counsel for the parties and perused the materials on re cord as well as record called from the learned trial Court. Perusal of the recor d indicates that on 18/8/08, the Advocate for pro-forma defendant Nos 6 and 7 fi led Hajira. It appears that the counsel for the pro-forma defendant Nos.6 and 7 is same. No petition was filed praying for grant of time to file written stateme nt on that date. Filing of applications for transposing as plaintiffs will not necessarily mean that the petitioners were not required to file appropriate appl ications praying for time to file written statements or to defer the filing of t he written statement till such time their applications for transposition were co nsidered. In that view of the matter, this Court finds no illegality in the order dated 18 /8/08. With regard to order dated 25/9/08, this Court only has to say that the order me rely mentions that the case is proceeding ex-parte against the petitioners. No a rguments have been advanced as to why the learned trial Court was in error in al lowing the prayer of the plaintiff to summon official witnesses. No interference is called for with regard to the order dated 25/9/08. Order 23 Rule 1 A of the CPC provides that where a suit is withdrawn or abandone d by the plaintiff under Rule 1 Order 23, and a defendant applies to be transpos ed as plaintiff under Rule 10 of Order1, the Court shall, in considering such ap plication, have due regard to the question whether the applicant has a substanti al question to be decided as against any of the other defendants. The applications filed by the petitioners for transposition do not fulfill the r equirement of Order 23 Rule 1 A. Though the learned trial Court had rejected the application by order dated 7/11/08 on grounds other than this, in view of the a foresaid position of law, no interference is called for with the order dated 7/1 1/08. This Court did not find any order disposing of the application filed by the pro- forma defendant Nos 6 for transposition. It is not known whether the application filed by pro-forma defendant No.6 for transposition was moved or not. However, this Court notices from the records of the learned Court below that petition No. 2755/09 was filed on 26/3/09 by the pro-forma defendant Nos. 6 and 7 contending that as their applications were rejected by order dated 7/11/08 for transpositio n as plaintiff, they wanted to prefer revision application before this court and thus prayed for adjournment of the case for one week. The pro-forma defendant N os. 6 and 7 also proceeded on the basis that their respective applications were dismissed by order dated 7/11/08. In any view of the matter, for the reasons rec orded by this Court, this Court holds that the application filed by pro-forma re spondent No.6 is also liable to be dismissed for the reasons assigned herein bef ore. Accordingly, the petition filed by pro-forma respondent No.6 for transposit ion is also held to be without any merit and accordingly dismissed. Perusal of the record indicates that at no point of time, the petitioners prayed before the learned trial Court for vacating the ex-parte order against them and therefore, the learned trial Court committed no jurisdictional error in passing the order dated 2/3/09 rejecting the prayer for an opportunity to file written statement. Be it noted that the plaintiff is also not seeking any relief against the petitioners, a point repeatedly highlighted by Mr. P.K. Deka. In view of the aforesaid discussions, I find no merit in this application and th e application is dismissed. Send back the LCR.