Judgment:
ORDER
Ajit Kumar Sinha, J.
1. The present writ petition has been preferred for quashing of the Order dated 16.01.2007 passed in Title Suit No. 7 of 2003 by the learned Sub Judge Ist, Koderma whereby and whereunder he has been pleased to reject the petition under Order 1 Rule 10(2) of the Code of Civil Procedure filed by the Plaintiffs/petitioners to transpose the plaintiffs/Respondents (14 to 18) as defendants in the suit and thereby has acted illegally and with material irregularity which has caused irreparable loss and injury to the petitioners as also it has occasioned a failure of Justice.
2. The main contention raised by the counsel for the petitioners is as to whether the learned court below was justified in rejecting the petition under Order 1 Rule 10(2) of the Code of Civil Procedure. It has been submitted by the learned Counsel for the petitioners that the co-plaintiffs were not taking any interest in the suit since they were interested parties and has thus, jeopardized the case itself hence, the prayer to transpose such plaintiffs as proforma defendants in the suit so that the petitioners who will be the plaintiffs thereafter can properly contest the suit. The counsel for the petitioners further submits that the learned court below has inherent power under Order 1 Rule 10(2) read with Section 151 of the Code of Civil Procedure to transpose the plaintiff and defendant for protection and enforcement of their rights in the suit for declaration preferred with a prayer for delivery of possession and further to declare the sale deed No. 3977 and 3981 dated 27.6.2001 as illegal and inoperative and the plaintiffs were not bound by the same.
3. The learned Counsel for the respondents submits that no case has been made out and on a bare reading of the Interlocutory Application filed, it will be evident that the prayer was not even maintainable. It has further been contended by the learned Counsel for the respondents that the matter is at evidence stage and thus, the prayer cannot be entertained at this stage and even the grounds stated in the petition are untenable.
4. The learned Counsel for the petitioners has referred to and relied upon the Judgments reported in , Para (4) and : [1958]1SCR1287 Para (10) to support his contention that the learned court below is empowered and could have passed an order in the interest of justice and thus, the impugned order was clearly illegal and unsustainable in the eyes of law and liable to be quashed.
5. I have considered the submissions and arguments and also the provision of the Code of Civil Procedure under Order 1 Rule 10(2), which is quoted as under:
Court may strike out or add parties: The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether us plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.
Order 1 Rule 10(2) of the Code of Civil Procedure also provides for striking out the names of any party either as plaintiff or defendant and further to join the name of any person as plaintiff or defendant.
6. Even otherwise, the court below has inherent power under Section 151 of the Code of Civil Procedure to pass appropriate orders. I have also considered the pleadings and the case laws and the provisions of the Code of Civil Procedure which clearly provides that the power of the court below in a given set of facts and in the interest of justice the same can be done provided a case is made out. The specific case of the petitioner is that those plaintiffs who are arraigned as Respondent Nos. 14 to 18 herein, have become interested parties and connived with the defendants in the suit and they are not supporting the case of the present petitioners who are co-plaintiffs. It also appears that the plea of their being interested and taking sides of the defendants also that they being not cooperative was specifically pleaded and thus, it was in the interest of justice for the court below to consider these aspects of the matter and allow the same on its own merit.
The Hon'ble Supreme Court in : [1958]1SCR1287 held that the Court can, if necessary, take action suo motu either under Order 1 Rule 10 or in its inherent jurisdiction and transpose the appellant as respondent in the appeal.
A Division Bench of Gauhati High Court in at para 4 while interpreting the Order 1 Rule 10 of the Code of Civil Procedure held that it clearly provides for adding parties or transposing plaintiff as defendant or defendant as plaintiff for effectually and complete adjudication of disputes.
7. In the aforesaid background the reasoning that since the plaintiffs have filed a joint petition along with the Respondent Nos. 14 to 18 herein, and thus they cannot be transposed and further the reasoning that there is no basis to support the application is factually incorrect.
In the light of the aforesaid facts and circumstances of the case, this writ petition is allowed and the matter is remitted back to the court below to consider it afresh in the light of the observations made hereinabove.