1. A suit for partition, after the appearance of the defendants and the submission of written statement raising a counter claim, was not proceeded with by the original plaintiffs. Consequently, the trial court allowed the first and second defendants to transpose as additional plaintiffs and to proceed with the suit. The suit ended in a preliminary decree for partition. It was taken up in appeal by the original plaintiff on the ground that a decree was granted against him without affording a right of hearing. But the First Appellate Court repelled his contentions and dismissed the appeal by upholding the preliminary decree granted. Aggrieved by the said decree and judgment, the original plaintiff came up with this appeal. During the pendency, original plaintiff passed away, legal heirs were impleaded and proceeded with the appeal.
2. The first and second defendants were permitted to transpose as additional plaintiffs after raising a counter claim in the suit. The trial court granted a preliminary decree for partition of plaint schedule and counter claim B schedule property by allowing the plaint claim and the counter claim.
3. The original plaintiff in the suit had claimed exclusive title over counter claim B schedule propert
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y based on a purchase certificate. Counter claim was raised by the first and second defendants claiming co-ownership right over the said property, left out by their deceased father Kunjan alleging that he had obtained the same on the demise of his brother, Velayudhan. In short, the trial court and the First Appellate Court granted a decree for partition of plaint schedule property as well as counter claim schedule property without considering whether it is permissible to have divergent interest between the original plaintiffs and the transposed plaintiffs and the impact of transposition of some of the defendants without the consent of the original plaintiffs. But the decree is seen passed against the original plaintiffs also. It was taken up in appeal by the original plaintiffs, but failed. Hence this second appeal.
4. The questions came up for consideration are :-
1) Under what circumstances transposition of defendant or some of the defendants can be permitted ?
2) Is it permissible to have divergent and conflicting interest between the plaintiffs in a suit, if so, to what extent ?
3) What would the legal consequences of a counter claim raised by the defendant or some of the defendants, after their transposition as co-plaintiffs? Whether it would form part of plaint claim after transposition, if not, whether it is permissible for the transposed plaintiff to proceed with the plaint pleading and the relief sought thereunder along with the counter claim and the pleading raised in the written statement simultaneously or whether it would be treated as two different suits for all purposes, if so, what would be the legal consequence of conflicting interest between the plaint claim and the counter claim under the written statement submitted by the transposed plaintiff ?
4) Whether it is legally permissible to effect transposition of a defendant who had raised a counter claim in the suit and whether it will result in conflicting interest between the plaintiffs ?
5) Under what circumstance, a transposition of a defendant, who had raised a counter claim in the suit, can be allowed ?
6) What would be the legal status of the original plaintiff after transposition of some of the defendants, if it was done without the consent of original plaintiffs ?
5. In a suit, there cannot be conflicting interest between the plaintiffs, though there can be conflicting interest between the defendants. There is no provision for resolving conflicting interest between the plaintiffs in a suit and there cannot be any adjudication of any conflicting interest between the plaintiffs. But there can be conflicting interest between the defendants and it is permissible to adjudicate the conflicting interest between the defendants, if it is found to be necessary for the adjudication of the dispute involved in the suit. The person who is having identical interest or common interest alone can be joined as a plaintiff in a suit. There is no provision for filing separate plaint by each and every plaintiffs in a suit, but it is permissible for the defendants to file separate written statement in a suit. In short, in a suit, there cannot be any conflicting interest between the plaintiffs. In this case, defendant Nos. 1 and 2 before their transposition as additional plaintiffs had raised counter claim over counter claim B schedule property as a partible property left out by the predecessor in interest of both the original plaintiffs and the defendant Nos. 1 and 2. But in the plaint, the claim of original plaintiff is that only the plaint schedule property alone is available for partition. If the defendant Nos. 1 and 2 transposed as additional plaintiffs, their counter claim would stand as claim raised by additional transposed plaintiffs against the plaint pleading raised by the original plaintiff. There would arise conflicting interest between the original plaintiff and the transposed plaintiff, if the original plaintiff remained as party to the suit in his status as original plaintiff. But the legal position was settled by a Division Bench of this Court ( in which I was also a member) in Donald Michael Richard v. Magline Paul ( 2017 (1) KLT 90), wherein it was settled that after transposition of some of the defendants as additional plaintiffs if it was done without the consent of the existing plaintiff, it amounts to abandonment of original suit by the original plaintiff and thereafter the original plaintiff ceased to be a party to the suit as there is complete substitution of some of the defendants in the place of original plaintiffs. The legal position was settled and summarised as follows :
“(1) Rule 1A of O.XXIII would come into play only when the suit was fully or completely withdrawn or abandoned by the plaintiff.
(2) Under Rule 1A of O.XXIII there is "a substitution of one of the defendant or some of the defendants in the place of original plaintiff/plaintiffs.
3) After the transposition under Rule 1A, the original plaintiff ceased to be a party to the suit as there is a complete substitution of some of the defendants as plaintiffs in the place of original plaintiffs. So after substitution (transposition) under Rule 1A of O.XXIII the original plaintiff would not be in the party array of the suit unless they were subsequently impleaded as a co-defendant by making proper application.
(4) When the suit was withdrawn or abandoned by the original plaintiff, the original plaintiff is redelegated to the bar under Rule 1(4) of O.XXIII and they are precluded from bringing a fresh suit for the same cause of action and same subject matter.
(5) It is permissible to transpose any of the defendant as a co-plaintiff in a suit without having withdrawing or abandoning the suit by the plaintiff, but it can be done only with the consent of original plaintiffs under Rule 10 of O.I and Rule 1(5) of O.XXIII CPC.”
6. Then comes the question whether it would be permissible to transpose a defendant who had already raised a counter claim in a suit in answer to the claim of plaintiff. In so far as partition suit is concerned, there is no much difference between the plaintiff and the defendant, if they are litigating under the same title admitting their identical status and interest with respect to the subject matter of the suit. But, the legal position would be different when there is divergent interest/conflicting interest between the parties to the suit, especially when one or some of the defendants had raised a conflicting interest by way of counter claim in answer to the claim of the plaintiff. Then comes the question as to what would be the legal status of a transposed plaintiff who had raised a counter claim in conflict with the plaint claim. A transposition of defendant as a co-plaintiff as enumerated in summary No.5 above with the consent of existing plaintiff cannot be done, if the proposed defendant, who wants to transpose as additional co-plaintiff raises a counter claim or any claim in conflict with the plaint claim as there is no provision for having conflicting interest on the subject matter of suit between the plaintiffs. But a transposition is permissible, when the original plaintiff specifically relinquishes any conflicting interest in the plaint, which would stand against the counter claim. When there is substitution by transposed plaintiff into the place of original plaintiff as enumerated in summary No.1 to 4 above, there is no such requirement that the original plaintiff or the transposed plaintiff should relinquish the conflicting interest, as the original plaintiff, thereafter, would not be in the party array of the suit, so as to create any conflicting interest. The transposed plaintiff can proceed with the original suit and the counter claim raised, but he must avoid conflicting interest between the plaint claim and the counter claim, though the plaint claim and counter claim can be treated as separate suits for all purposes. In the instant suit, the defendant Nos. 1 and 2 who had raised a counter claim over counter claim B schedule property were permitted to transpose as additional plaintiffs that too, without the consent of the original plaintiff, hence the matter would come under Order XXIII Rule 1A of C.P.C. and there is an implied abandonment of suit by the original plaintiff. Thereafter, the original plaintiff would not be in the party array of the suit. The original plaintiff has not been made as a co-defendant in the suit and hence the decree passed is not binding on the original plaintiff who had abandoned the suit.
7. But in the instant suit, the original plaintiff had opted to file an appeal against the decree before the First Appellate Court based on which it was argued that the original plaintiff has admitted their status as a party to the suit. The fact that the original plaintiff filed an appeal against the decree and judgment, under the guise of a party to the suit, itself will not be sufficient, to hold that he is a party to the suit, when the legal position settled says otherwise. His status in the appeal, hence can only be as an aggrieved person, though no leave was specifically obtained, presumably on the reason that the appeal was preferred under a mistaken impression as a party to the suit. This court had settled the legal position in Thottappayyil Suresan and Others v. A.P.Gopalakrishnan and Others ( 2019 (1) KHC 284) regarding the test available to determine who is an aggrieved person for the purpose of exhausting the remedy of appeal. In the instant case, the name of original plaintiff found a place in the suit and the decree and not removed from the party array of the suit and the decree and hence it may cause a future clog on his title, if it was not challenged, for that purpose, he is an aggrieved person.
8. Admittedly, no leave was granted and no application was submitted by the original plaintiff, while preferring the appeal. But the appeal was taken on file and proceeded with and disposed of on merits, without noticing the non-grant of leave. Since both the parties proceeded with the appeal, without raising non-grant of leave, it has to be presumed that leave was deemed to have been granted. Both parties were at a mistake, while prosecuting the appeal. Estoppel by conduct in preferring an appeal by the original plaintiff, as a party to the suit would not operate, as he is under a mistake regarding his status in the suit.
9. The jurisdiction vested with the trial court and the First Appellate Court has not been exercised in its correct perspective and that has resulted in miscarriage of justice. Hence the appeal is liable to be allowed in part. I do so.
The appeal is allowed in part and the decree and judgment of the Trial Court and the First Appellate Court are hereby set aside. The matter is remanded back to the trial court for the purpose of impleading the original plaintiff as a co-defendant in the suit and then to proceed with the suit along with the counter claim. The trial court shall dispose of the suit within a time schedule of three months from the date of appearance of the parties. The parties shall appear before the trial court on 28/03/2019. No order as to costs of second appeal