The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.86 of 2025 Sushanta Kumar Jena Petitioner Mr. A.P. Bose, Advocate …. Order No. 01. -Versus- Sita Sahoo and others …. Opposite Parties None
Legal Reasoning
CORAM: MR. JUSTICE R.K. PATTANAIK
Decision
ORDER 30.04.2025 1. Heard Mr. Bose, learned counsel for the petitioner. 2. No notices are issued to opposite party Nos.1 to 4 as the matter is disposed of at the stage of admission. No notices need be issued to the proforma opposite parties as no relief is claimed against them. 3. Instant petition is filed by the petitioner challenging the impugned order dated 21st December, 2024 as at Annexure-1 passed in connection with CS No.2102/2015 (942/2015) by learned 1st Additional Senior Civil Judge, Balasore, whereby, an application under Order 1 Rule 10 CPC seeking his transposition in place of opposite party No.1 to pursue the suit has been declined. 4. Mr. Bose, learned counsel for the petitioner would submit that opposite party No.1 is not inclined to pursue the suit and there has been an agreement between her and the petitioner and as the suit is for specific performance of contract with a sale deed being Page 1 of 4 registered with a direction to the contesting defendants in that regard. It is submitted that the relinquishment deed executed in favour the petitioner was revoked as per Annexure-3 after institution of the suit i.e. on 13th October, 2023. In view of the settlement reached at between the petitioner and opposite party No.1 on the one hand and contesting defendants on the other side, it is submitted by Mr. Bose, learned counsel that the same is the basis for the specific performance of contract. The contention is that a relinquishment deed was executed between the petitioner and defendant No.4 which was subsequently revoked vide Annexure-3 in the year 2023 and under such circumstances, the application for transposition was moved, however, the same was not entertained leading to the passing of the impugned order i.e. Annexure-1. 5. As per Order 23 Rule 1A CPC, transposition of one of the defendants as plaintiff may be permitted, where the suit is withdrawn or abandoned by a plaintiff as per Sub-rule (1) thereof and the Court, for that matter, considering an application received, having due regard to the question, whether, such transposition by the defendant has the substantial question to be decided against other defendants on record. In so far as the plaint, a copy of which is at Annexure-2, is concerned, the suit was instituted by opposite party No.1 with a relief directing the contesting defendants to execute and register a sale deed in respect of the schedule property. As far as the transposition is concerned, even though such an application under Order 1 Rule 10 CPC is filed by the petitioner, it has to be considered by a court and may be allowed, if necessary ingredients of Order 23 Rule 1-A CPC are fulfilled. In fact, learned court below declined such transposition on the premise that there is no mention in the plaint with regard to cancellation of the relinquishment of deed by the petitioner. The further conclusion is Page 2 of 4 that after execution of the relinquishment deed, rights have accrued in favour of the other side. A reference of the Apex Court decision in Vasantha Ammal Vrs. V.P. Dhanaraj (1990) 1 LW 209 was made by learned court below while denying the transposition. In the said decision, the grounds upon which transposition are to be allowed have been outlined and reproduced by learned court below which are to the effect that a Court shall not permit transposition, where valuable rights have accrued to the opposite parties and at the same time, the parties seeking such transposition lacks bonafide or has no genuine interest in the matter at hand. Though, the citation has been referred to but in so far as the present case is concerned, the petitioner, as one of the defendants, has applied for transposition for the facts and circumstances narrated hereinabove. 6. At the cost of repetition, it is to be stated that a relinquishment deed was executed between them and thereafter, it was revoked as per Annexure-3 and on account of no interest being shown by opposite party No.1 with an agreement between the two, transposition was sought for by the petitioner. The suit is for specific performance of contract and as the petitioner has abandoned the suit pursuant to the revocation of the deed of relinquishment, transposition was applied for. In the instant case, there has been no interest which may be said to have accrued in favour of the contesting defendants so to say and that apart, the petitioner has interest and inclination to enforce the specific performance of contract with a direction to such of the defendants to execute and register the sale deed. Having said that and in view of the discussions held hereinbefore and reference to Order 23 Rule 1A CPC and the fact that the petitioner as one of the defendants is inclined to pursue the suit after being transposed in place of opposite party No.1, who has abandoned it, in absence of any right Page 3 of 4 to have been accrued in favour of the contesting defendants, the Court is of the humble view that such transposition ought to have been allowed. 7. 8. Accordingly, it is ordered. In the result, the CMP stands disposed of with a direction to learned 1st Additional Senior Civil Judge, Balasore to allow such transposition of the petitioner as a plaintiff alongside opposite party No.1 to pursue the suit against the contesting defendants and thereafter, to proceed and dispose it of as per and in accordance with law. As a necessary corollary, the impugned order dated 21st December, 2024 in CS No.2102 of 2025 (942/2015) is hereby set aside. It is further directed that learned court below shall do well to expedite the hearing and disposal of the suit within a reasonable period. In the circumstances, however, there is no order as to costs. 9. Urgent certified copy of this order be issued as per rules. (R.K. Pattanaik) Judge TUDU Signature Not Verified Digitally Signed Signed by: THAKURDAS TUDU Reason: Authentication Location: OHC,CTC Date: 03-May-2025 12:28:57 Page 4 of 4