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Narharibhai Chaturbhai Patel & Others v/s Ashish Mukundlal Shah & Others

    R. Special Civil Application No. 2082 of 2015 with Civil Application (For Joining Party) No. 1 of 2015

    Decided On, 24 May 2022

    At, High Court of Gujarat At Ahmedabad

    By, THE HONOURABLE MR. JUSTICE B.N. KARIA

    For the Petitioners: Percy Kavina, Sr. Advocate with P.A. Mehdi (3489), Advocate. For the Respondents: Shalin Mehta, B.S. Patel, Sr. Advocates with Aditi S. Raol (8128), Chirag B. Patel (3679), Advocates.



Judgment Text

Cav Judgment:

1. Rule returnable forthwith. Learned advocate Ms. Aditi Raol waives service of notice for and on behalf of the respondents no. 1 and 3. Learned advocate Mr. Chirag B. Patel waives service of notice of rule for and on behalf of the respondent no.4.

2. By way of present petition, petitioners have requested to quash and set aside the judgment and order dated 15.10.2014 passed by learned Civil Judge (S.D.) Vadodara in Regular Civil Suit No. 91 of 2001 by which the application of the respondent no.1 for transposing himself as well as the petitioner no.2 company as plaintiffs in Regular Civil Suit No. 91 of 2001 came to be allowed and the purshish of the petitioner no.1 to withdraw Regular Civil Suit No. 91 of 2001 came to be rejected.

3. Brief facts of the present petition may be summarized as under:

3.1 The petitioner no. 2 is a private limited company registered under the provisions of theCompanies Act. The petitioner nos. 1 and 3 along with the respondent nos. 1, 3 and 4 are the shareholders of the petitioner no. 2 company. The petitioner nos. 1 and 3 are suing through his legally constituted power of attorney. The respondent no. 5 is the Registrar of the Court of the Civil Judge (S.D.) and is a formal party to the present proceedings. That, as on today, the shareholding pattern has undergone a change and the petitioner nos. 1, 3 and the respondent no. 4 herein, in their personal capacity, jointly own more than 90% of the shares of the petitioner no. 2 company. However, originally, the affairs of the petitioner no. 2 company were being conducted exclusively by the petitioner no. 3 and the respondent no. 1 herein.

3.2 The petitioner no. 1, as one of the shareholders in the petitioner no. 2 company, had various grievances against the manner in which the affairs of the petitioner no. 2 company were originally being conducted at the relevant point of time. Under those circumstances, the petitioner no. 1 had filed Regular Civil Suit No. 91 of 2001 against the petitioner nos. 2 and 3 as well as the respondents herein. In the said suit, an application for injunction was also preferred. That, at the relevant point of time, the affairs of the company were primarily being conducted firstly by the petitioner no. 3 and the respondent no. 1 and thereafter solely by the respondent no. 1. Consequently, a reading of the plaint of Regular Civil Suit No. 91 of 2001 would clear demonstrate that almost all the allegations are prime against the respondent no. 1 herein.

3.3 Initially, while issuing notice, ad interim injunction also came to be granted to the petitioner no. 1 herein as prayed. Thereafter, an application Exh, 84 for modification of ad- interim injunction came to be filed in the proceedings of Regular Civil Suit No. 91 of 2001. Vide order dated 27.4.2004 the said application came to be allowed and the modification sought came to be permitted. The order dated 27/4/2004 passed below Exh. 84 in Regular Civil Suit No. 91 of 2001 came to be challenged by the respondent no. 1 before the Hon'ble High Court of Gujarat by filing Special Civil Application No. 7633 of 2004.

3.4 That, initially, vide order dated 24.9.2004, ad-interim relief came to be granted in Special Civil Application No. 7633 of 2004 to the effect that the operation of the order dated 27/4/2004 passed below Exh. 84 in Regular Civil Suit No. 91 of 2001 came to be stayed.

3.5 Ultimately, vide order dated 26.3.2009, Special Civil Application No. 7633 of 2004 came to be disposed off after recording the statement of both sides that they have no objection if the interim relief granted therein is extended upto the hearing of the Exh. 5 application in Regular Civil Suit No. 91 of 2001. On the basis of the said statement, the Hon'ble Court directed that the interim relief granted by it would be extended upto the hearing of the Exh. 5 in Regular Civil Suit No. 91 of 2001 and that the learned Trial Court would decide Exh. 5 after hearing both sides.

3.6 Thereafter, vide order dated 30/6/2014 passed below Exh. 5 in Regular Civil Suit No. 91 of 2001, it was directed that the application Exh. 5 be heard along with the suit. In the meantime, there arose various disputes and differences between the rest of the shareholders of the petitioner no. 2 company. This resulted in the respondent no. 1 and 3 filing a suit being Special Civil Suit No. 139 of 2005 against various parties, including the parties to the present proceedings. It is pertinent to note that the said Special Civil Suit No. 139 of 2005 is pending as on today and no injunction is granted in favour of the respondent no. 1 and 3 herein. Thereafter, vide judgment and order dated 15.10.2014 passed by learned Civil Judge (S.D.) Vadodara in Regular Civil Suit No. 91 of 2001 by which the application of the respondent no.1 for transposing himself as well as the petitioner no.2 company as plaintiffs in Regular Civil Suit No. 91 of 2001 came to be allowed and the purshish of the petitioner no.1 to withdraw Regular Civil Suit No. 91 of 2001 came to be rejected. Hence, this petition.

4. Heard learned advocates for the respective parties.

5. Learned advocate for the petitioners has submitted that the only interim relief which continued to operate on the company and its shareholders was that no actions should be taken without the consent of the petitioner no.1 herein. Consequently, there was no bar in acting with the consent of the petitioner no. 1, who was the original plaintiff in Regular Civil Suit No. 91 of 2001. That, the shareholding of the petitioner no. 2 company underwent a change and the petitioners together held more than 90% of the share capital of the company. That, various disputes arose between the respondent nos, 1 to 3, the respondent no. 4 and the petitioners herein, for which the respondent nos. 1 and 3 have filed a separate suit. However, no injunction is granted in favor of the respondent nos. 1 to 3 till date, either in that suit or in any other legal proceedings. Thereafter, there were talks between the original plaintiff of Regular Civil Suit No. 91 of 2001 being the petitioner no. 1 herein and the majority shareholders of the company and all disputes which were raised in Regular Civil Suit No. 91 of 2001 were resolved between them. After the resolution of disputes with the petitioner no. 1, the company and its shareholders entered into various transactions on behalf of the petitioner no.2 company, including sale of a property of the petitioner no. 2 company. All these transactions are undisputedly done with the consent of the petitioner no. 1, who was the original plaintiff in Regular Civil Suit No. 91 of 2001. Consequently, though the said Regular Civil Suit No. 91 of 2001 was not formally withdrawn, there was no breach of injunction by the parties. Ultimately, the petitioner no. 1 filed withdrawal purshish Exh. 124 before the Hon'ble Civil Court in Regular Civil Suit No. 91 of 2001. The respondent no. 1 objected to the withdrawal of Regular Civil Suit No. 91 of 2001 and thereafter filed application Exh. 132 on behalf of himself as well as on behalf of the petitioner no. 2 company for having himself as well as the petitioner no. 2 company transposed as plaintiffs in Regular Civil Suit No. 91 of 2001. It is pertinent to note that the respondent no.1 has a mere 1.95% shareholding in the petitioner no. 2 company and there is no board resolution of the company which permits him to either represent the company or to file an application for transpose on behalf of the company and he has no authority whatsoever to act on behalf of the company. As a matter of fact, the respondent no. 1 is in a habit of trying to represent the company without any authority whatsoever and had earlier made an attempt to represent the company by appointing his own lawyer without any board resolution permitting him to do so. The company was thereafter forced to pass an appropriate board resolution for replacing the said lawyer and take charge of the legal proceedings. That the application for transpose is totally misconceived and is not maintainable in the eyes of law. The respondent no. 1 is not a pro forma defendant in the present case and the present case is also not of a nature in which the application for transpose could have been allowed.

6. That, from a reading of the plaint, it becomes apparent that in the present proceedings, all the transactions challenged by the original plaintiff are done by the respondent no. 1 herein and all the allegations made are against the respondent no. 1 herein. Consequently, permitting the respondent no. 1 to be transposed as the plaintiff would amount to permitting the respondent no. 1 to prove allegations against himself and to challenge his own actions which would be completely illogical. That, the petitioner no. 1 is the plaintiff of Regular Civil Suit No. 91 of 2001 and is consequently the dominus litus of the said suit and therefore no person can be permitted to be joined as a co-plaintiff without the consent of the petitioner no. 1. That, the sole purpose of the respondent no. 1 applying to transpose himself as well as the company as plaintiffs was the respondent no. 1 wanted to misuse the ad interim relief granted earlier and illegally pressurize the petitioners herein for gaining undue advantage in his second suit. As a matter of fact, an application for contempt is already filed by the respondent no. 1 in the proceedings of Regular Civil Suit No. 91 of 2001. That, as on today, by action of the original plaintiff, the Regular Civil Suit No. 91 of 2001 has become infructuous and would not survive. Consequently, the question of transpose would never arise. That, the despite the aforesaid facts, the Hon'ble Civil Court, vide order dated 15/10/2014 passed below Exh. 124 and 132 in Regular Civil Suit No. 91 of 2001 and rejected the withdrawal purshish of the petitioner no.1 herein and also permitted the respondent no. 1 to transpose himself as well as the petitioner no. 2 company as plaintiffs of Regular Civil Suit No. 91 of 2001 and the said order is wholly without jurisdiction, arbitrary and is passed without any application of mind. The learned Civil Court neither has the jurisdiction to force the petitioner no. 1 to continue with the suit nor has jurisdiction to prevent him from withdrawing the suit nor has jurisdiction to transpose the company and the respondent no. 1 as plaintiffs in the facts of the present case. The learned trial Court has also failed to consider the absurd situation which is created by permitting the respondent no. 1 and the petitioner company to be transposed as plaintiffs in the facts of the present case. Hence, it was requested by learned advocate for the petitioners to allow present petition. In support of his arguments, learned advocate for the petitioners has relied upon the following judgments:

1.Jethiben v. Maniben and Anrs. Reported in AIR 1983 Gujarat 194.

2.Sabbirali Alihusein Vora v. Kikabhai Mohmedali, reported in 2006(0) AIJEL HC 216992

3.Patel Dineshbhai Mohanbhai v. Naranbhai Ramdas (Deceased) through Legal Heirs, reported in 2005(1) GLR page no. 116.

7. On the other hand, learned advocate for the respondent no.1 has supported the impugned order passed by the court below in Regular Civil Suit No. 91 of 2001 and submitted that petitioner No.2 herein Nimalkar Enterprises Pvt. Ltd., was the original registered partnership firm and the petitioners no. 1 and 3 along with the respondent no.1 were partners in the said firm. That, the said firm was converted into a private Limited company in the year 1995 and the petitioner no. 3 along with the respondent no.2 were the only permanent Directors on the Board of Directors. The issues involved in both the Regular Civil Suit No. 91 of 2001 and the present petition relate to the existence of the partnership firm and its continuance as a private limited company. That, the entire project was undertaken on the suit land was controlled by the respondent no.2 herein, Inter Overseas Real Estate Limited (IOREL) which was managed by respondent no.3 as a Chairman and respondent no.4 as Managing Director. It was further submitted that power of attorney and agreement to sell dated 16th April 1993 of the suit property was executed between the owners and respondent no.2 company IOREL for the purpose of development of the suit land and entire control and financial investment on the said project is of the respondent no.2 company (IOREL), in which, the respondents no. 1, 3 and 4 and the petitioner no.3 were the Directors. That, in fact, both the companies were represented by same group of persons and it was evolved with common design of glorified partnership as per the memorandum of understanding dated 31.03.1993 executed by all the interested parties in respect of development undertaken on the suit land. That, after completion of the first phase of the project in the year 1997, disputes were arisen between the parties and consequences thereof, several criminal as well as civil proceedings were also arisen and even arbitration proceedings also. That, Regular Civil Suit No. 91 of 2001 was filed by the petitioner no.1, which is pending for final adjudication. In the meantime, in 2002, with the intervention of some honest persons, agreement dated 23.03.2002 was entered between the parties wherein interalia recorded understanding with respect of business undertaking by both the parties on the suit land. This agreement was binding on all the parties as well as share holders. That, during this period, the petitioner no.1 filed a purshish before the trial Court illegally withdrawing the present suit being Regular Civil Suit No. 91 of 2001 filed by him. That, the suit for specific performance of the aforesaid agreement executed in the year 2002 is also pending before civil court. That, the respondents no.1 and 3 herein are the co-owners and co- possession holders of the suit property from the very beginning as a partner/promoter, which cannot be taken away by anybody or by any institute by creating false documents, because the titles of the property are with the respondent no.1. That, being heir of deceased respondent no.3, his share is also inherited by the respondent no.1, and therefore, respondent no.1 moved the said application vide Ex. 132 in Regular Civil Suit No. 91 of 2001 seeking transposition of respondent no.1 and petitioner no.2 herein in place of the original plaintiff (present petitioner no.1), which was rightly allowed by the learned Judge by common order dated 15.10.2014 below Ex. 124 and Ex. 132. That, at the relevant point of time, petitioner no.2 company was dormant, and therefore, there was no question of any transaction taking place in the business of the company prior to the filing of the Regular Civil Suit No. 91 of 2001. It was further submitted that order dated 27.04.2004 passed below Ex. 84 in Regular Civil Suit No. 91 of 2001 was challenged by the respondent no.1 before this Court in Special Civil Application No. 7633 on the ground that without affording an opportunity of hearing or of filing of reply to respondents no. 1 and 3 herein, the said order was passed by the trial court. That, no copy of amendment application filed by the petitioner no.1 was supplied or given to the respondents no.1 and 3 herein. That the petitioners No. 1 and 3 and respondent no.4 designed their action behind the back of respondents no. 1 and 3 , which resulted in injustice to them. That the withdrawal pursis submitted by the petitioner no.1 was one such design, which was opposed by the respondents no.1 and 3 herein. It was further submitted that in Special Civil Suit No. 139 of 2005 was preferred by the respondents no.1 and 3 for specific performance of the aforesaid agreement dated 23.03.2002 entered between the parties. It was further submitted that it was also agreed in the said agreement that the Regular Civil Suit No. 91 of 2001 filed by the petitioner herein is to be decreed in terms of this agreement. However, this was not happened but after induction of respondent no.4 in the Board of Directors of the petitioner no.2 company by respondent no.1 in furtherance of the agreement dated 23.03.2002 entered into between the parties. The respondent no.4 with the collusion of petitioners no.1 and 3, they started showing their true colours by playing fraud on the petitioner No.2 company by passing fraudulent circular resolutions and making attempt to issue and allot fraudulent share, appointment of strangers as Directors on the Board of Directors of the petitioner no.2 company. It was further submitted that respondent no.1, later on, came into knowledge about certain illegal transactions made with respect to suit land and necessary objections were also raised by him before Civil Court in Regular Civil Suit No. 91 of 2001. That, respondent no.1 had also moved an application for transposing of parties which was granted vide order dated 15.10.2014 passed by the trial court below Ex. 132 in Regular Civil Suit No. 91 of 2001. That, another application was also preferred against the respondent no.4 for breach of injunction, as the interim order of this Court was in force. Strong objections were also made by the respondent no.1 for withdrawal of the suit filed by the petitioner no.1 in collusion with the respondent no.4. That, respondent no.1 is permanent Director of the petitioner no.2 company nominated under Articles of Association and such nomination cannot be changed at any point of time. That, in Regular Civil Suit No. 91 of 2001, the petitioner no.2 company is made a party defendant no.1 in the capacity as a registered company under the law and respondent no.1 as defendant no.2 as a Permanent Director of the defendant no.1 company. That, respondent no.1 being a permanent director of petitioner no.2 company, which became dormant and other permanent Director, respondent no.3 had permanently travelled to USA since 1997 and was not readily available to tract any business of the company. In such circumstances, the respondent no.1 was the only permanent Director available with the petitioner no.2 company and hence, his actions as per law cannot be termed as unauthorized and the respondent no.1 had all the rights, power and authority to act on behalf of the petitioner no.2 company.

8. It was further submitted that application for transposition is rightly allowed by the court. It was further submitted that all the transactions and business of project on the suit land was undertaken by the respondents No. 2, 3 and 4 by virtue of Power of attorney given by the partners of the firm and the said firm was thereafter converted into a private limited company. It was further submitted that contempt application has been filed by the respondent no.1 in Regular Civil Suit No. 91 of 2001 against the respondent no.4 for transposing of the assets of the company, operating bank accounts illegally and making fraudulent share allotments with a view to preventing him from doing further illegal acts and impose suitable punishment for committing contempt of court's order. It was further submitted that after considering the arguments of the rival parties and after considering the various decisions relied upon by the rival parties, by a reasoned order dated 15.10.2014, learned Trial Court has rightly passed the order allowing the application Ex. 132 and dismissing application for withdrawal of the suit Ex. 124 and permitting the defendants no.1 and 2 to be transposed from defendants to the plaintiffs No.2 and 3 under Order 1 Rule 10(2) of the Code and Order 23 Rule 1(A) of the Code. It was further submitted that order dated 15.10.2014 is the legal and suffers from no infirmities as to jurisdiction or law and no interference by this court is warranted. It was further submitted that present petition deserves to be dismissed as lamine and hence, prayed to dismiss present petition. In support of his arguments, learned advocate for the respondent no.1 has placed his reliance in the case ofR. Dhanasundari @ R. Rajeswari v. A.N. Umakanth & Ors, reported in 2019(4) Scale.

9. Learned advocate for the respondent no.4 has supported the arguments advanced by learned advocate for the petitioners.

10. Having heard learned advocate for the petitioners and learned advocate for the respondent no.1 and having perused the material documents placed on record by the either side, it appears that Regular Civil Suit No. 91 of 2001 was filed by the petitioner no.1 against the respondents/defendants before the trial court. During the pendency of this suit, vide Ex. 124, a purshish was filed by the plaintiff stating that there was no dispute between the plaintiff and the defendants and all the disputed were resolved, and therefore, the plaintiff did not want to proceed further with the suit, and therefore, requested for unconditional withdrawal of the suit. He prayed to dispose of the suit in view of the contents of the application dated 15.12.2011 (produced on 17.12.2011) under the signature of the plaintiff namely Patel Narsinhbhai Chaturbhai. The Court below passed an order recording that the plaintiff namely Patel Narsinhbhai Chaturbhai was present and he was identified by his learned advocate Mr. S.S. Patel and defendant Prafulbhai Chimanbhai Patel was also present, who was also identified by his learned advocate Mr. J. A. Vaghela. Defendant No.6 was also present alongwith his learned advocate Shri D.N. Chauhan. It was declared at the bar before the court that they do not want to proceed with the suit, and therefore, they were unconditionally withdrawing the suit. The court further observed that in the suit, there was disclosure of said order passed by the Hon'ble Gujarat High Curt, and therefore, for verification of the record, application Ex. 124 was fixed on the next day for hearing and passing further order on 17.12.2011. Endorsement was also made by learned advocate for the respondent no.2 objecting for withdrawal of the suit. Thereafter, vide Ex. 132, the defendants no.1 and 2 being director of defendant no.1 company in a personal capacity of Ashish Mukundlal Shah-respondent no.1herein made an application on 18.04.2013 praying to transpose him as the plaintiff, till then, no order was passed below application Ex. 124 permitting the plaintiff for withdrawal of the suit. After passing of one and half years approximately, second application Ex. 132 was submitted by the defendants no.1 and 2 praying to transpose them in a suit as the plaintiff for the reasons stated in the application. Learned trial Court after hearing the parties, allowed the application Ex. 132 preferred by the defendants no.1 and 2 and dismissed the purshish Ex. 124 for withdrawal of the suit by his common order dated 15.10.2014. As per the observations of the trial court, there was a substantial question between the parties and co- defendant had identical interest and for avoiding another suit as well as multiplicity of proceedings, as defendants are the Director and some agreement was also made for development purpose, if prayer made by the defendants no.1 and 2 to transpose them would be accepted, the substantial question would be determined and if withdrawal of suit would be permitted, it would bring multiplicity of proceedings. If again refer the contents of the application Ex. 124 submitted by the plaintiff in Regular Civil Suit No. 91 of 2001, it was simply disclosed that there was no dispute remained pending between the parties and all the disputes were resolved, and therefore, plaintiff did not want to proceed with the suit further, and therefore, prayer to permit him to withdraw the suit unconditionally.

11. If we consider the legal position of the withdrawal of the suit unconditionally as prayed by the plaintiff, this court would like to refer the judgment passed in the caseJethiben v. Maniben and another, reported in AIR 1983 Gujarat 194, wherein in para 8, 11 and 12 of the said judgment, the Hon'ble Apex Court has held that:

"To be transposed as a plaintiff, the defendant who claims to be transposed must have interest identical with the interest of the plaintiff. There are cases where plaintiff filed a suit who has interest in common to the person whom he makes pro forma defendant, in collusion with the contesting defendant, such a plaintiff may sometime decide to withdraw the suit. In order not to defeat the claim of pro forma defendant who has an identical interest with the plaintiff by such a withdrawal, provision of Order 23, Rule 1-A of the Code is made so that pro forma defendant or the defendant can be transposed as a plaintiff and the suit as filed by the plaintiff can be effectively proceeded against the defendant who has remained on the record as defendant. This is what the spirit of Order 23, Rule 1-A of the Code shows, because in such cases, the applicant (defendant applying to be transposed as plaintiff) has a substantial question to be decided as against any of the remaining defendants. Though Courts lean against multiplicity of suits and, therefore, this provision of transposition is made only to avoid another suit. Courts would not permit such transposition just to give a chance to a litigant to avoid filing a suit or permit him to take advantage of the suit filed by his adversary against him claiming a relief against him by becoming a plaintiff and trying to bring out the averments and reliefs which are contrary to those claimed by the original plaintiff. It is true that the provision of Order 23, Rule 1- A is new, but would that change the character and requirement of transposition? It merely permits that if the plaintiff withdraws the suit, the defendant can request the Court to transpose him as plaintiff if the substantial question has to be decided against the remaining defendant. But that is circumscribed by the position under Order 1, Rule 10 of the Code, meaning thereby, under what circumstances transposition can be permitted. This provision is added, as considered earlier, in order to facilitate a pro forma defendant who has identical interest from being denied his right if he rested on the success of the plaintiff's suit and the plaintiff wanted to withdraw the suit. So, in that case if such a defendant is transposed as plaintiff, he can effectively get adjudication of his right. Courts even without this provision have considered as to what would be the position, when a plaintiff attempts to withdraw the suit on the rights of all other pro forma plaintiffs or pro forma defendants or defendants who have a cause of action identical to that of the plaintiff. In order to make a clear provision, this provision was added, though it was also considered on the same lines earlier irrespective of this provision. So, the normal consideration for transposition, that interest of the person to be transposed as plaintiff must be identical to the interest of the plaintiff who tries to withdraw, would not go away."

12. So far as the purshish ie., application Ex. 124 is concerned, if that application is allowed, it would result into the final disposal of the suit. The petitioner-original plaintiff has challenged the order passed below application Ex. 124 by which, original plaintiff was not permitted to withdraw the suit unconditionally. If ultimately, original plaintiff is permitted to withdraw the suit by allowing the said application Ex. 124, naturally, its effect would by that the entire suit would be determined. Considering the nature of the aforesaid two applications, as both the applications cannot be considered separately as ultimately, if original plaintiff is permitted to withdraw the suit by allowing application Ex. 124, there is no question of considering the application of the defendants no.1 and 2 filed vide Ex. 132, as suit would come to an end. Even the trial court has decided both the applications together and dispose of by common order and the trial court has decided the application Ex. 124, by which, the trial court has rejected the prayer of the original plaintiff to withdraw the suit unconditionally and subsequently, consequential order is passed below application Ex. 132, by which, the defendants no.1 and 2 are permitted to be transposed them as the plaintiffs. However, if application Ex. 124 is allowed interalia, no suit would remain on th file and in that case, there is no question of permitting the defendants no.1 and 2 to be transposed as co-plaintiff in the suit. As a matter of fact, if application Ex. 124 is allowed, application Ex. 132 subsequently given by the defendants no. 1 and 2 will automatically become infructuous as there is no question of permitting the defendants no.1 and 2 to be transposed as co- plaintiffs. Considering the aforesaid aspect of the matter as well as considering the fact that if the plaintiff is permitted to be withdrawn the suit, the whole suit would be disposed of finally, such order would be revisable order under the amended provisions of the Code.

13. Coming to the facts of the case, after filing the suit by the plaintiff and pendency of the suit, in the year 2002, an agreement dated 23rd March 2002 came to be entered between the parties. This agreement interalia recorded the understanding with respect of business undertaking by both the companies on the suit land. Further it appears from the copy of the agreement placed on record that rights of all the parties were taken due care and this agreement was binding on all the parties as well as the share holders. During this period, plaintiff filed a Purshish before the trial court requesting to withdraw the Regular Civil Suit No. 91 of 2001 filed by him. Further it appears from the record that Special Civil Suit No. 139 of 2005 was also preferred by the respondents No.1 and 3 herein for specific performance of the aforesaid agreement dated 23.03.2002 entered into between the parties. As agreed between the parties in the agreement dated 23.03.2002 that the Regular Civil Suit No. 91 of 2001 filed by the petitioner herein is to be decreed in terms of this agreement. However, this was not happened and respondent no.4 was inducted in the Board of Directors of the petitioner no.2 company by respondent no.1 in furtherance of the agreement dated 23.03.2002.

14. It appears that the application submitted by the respondent no.1 below application Ex. 132 in Regular Civil Suit No. 91 of 2001 seeking transposition of respondent no.1 and petitioner no.2 in place of the original plaintiffs was not permissible in view of the facts of the second agreement dated 23.03.2002 and particularly, filing of Special Civil Suit No. 139 of 2005 by respondents no.1 and 2 herein for specific performance of the agreement dated 23.03.2002 entered into between the parties.

15. In these circumstances, the question which requires consideration is whether the original plaintiff has absolute right to withdraw the suit unconditionally and whether the defendants no.1 and 2 are entitled to apply under Order 23 Rule 1(A) of the Code to transpose them from defendants to plaintiffs to the suit.

16. Hon'ble Supreme Court in case of "Ms. Hulas Rai Baij Nath v. Firm K.B. Bass and Co., reported in 1968 SC 111 has held that Order 23 Rule 1 Sub-rule (1) of C.P.C., gives an unqualified right to a plaintiff to withdraw from a suit and, if no permission to file a fresh suit sought under Sub-rule (2) of the Rule, the plaintiff becomes liable for such costs as the Court may award and becomes precluded from instituting any fresh suit in respect of the subject matter under sub-Rule (3) of the Rule. It was further held by the Hon'ble Apex Court in the said judgment that there is no provisions in the Code, which requires to refuse permission to withdraw the suit in such circumstances and to compel the plaintiff to proceed with it. It has also been held that different considerations may arise where the set-off may have been claimed under Order 8 of Civil Procedure Code, or a counter claim may have been filed, if permissible by the procedural law applicable to the proceedings governing the suit.

17. Considering the aforesaid judgment of Hon'ble Apex court, this Court in the judgment reported in 2005 (1) GLR Page 116 (Patel Dineshbhai Mohanbhai v. Naranbhai Ramdas (Decd.) Through Legal heirs) , in para 46 also held that the plaintiff has got absolute right to withdraw his suit unconditionally. It is required to be noted that it no doubt that respondent no.1 herein has also filed substantive civil suit for specific performance of an agreement executed between the parties on 23.03.2002 and is still pending.

18. In the aforesaid suit, even the plaintiff of the present suit as well as respondent no.1 are the party defendants. It is definite to appreciate that reasons given by the trial court wherein it is stated that by giving said purshish Ex. 124, all are the question be determined so it cannot be multiplicity of proceedings, and therefore, it is not proper to grant withdrawal without determining the aforesaid question between the parties are not correct.

19. It also required to be noted that if the plaintiff has settled his dispute with the original defendant and if the plaintiff wants to withdraw the suit unconditionally, the court has no jurisdictio

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n to refuse such unconditional withdrawal, unless there is any counter claim or set-off claimed by the defendant in the said suit. 20. In the instance case, there is no counter claim made by the defendant or set off claimed by the defendant in the said suit preferred by the plaintiff. It is pertinent to note that if it is the suit for partition, it would stand on the different footing. In such partition suit, the cause of action of the plaintiff and some of the defendants and in such a case, Court can permit such defendants to be transposed as plaintiffs but that is not the situation in the present case. In my view, therefore, the trial Court has committed error of jurisdiction by refusing such unconditional withdrawal of the suit. When the plaintiff wants to withdraw the suit, the conduct of the plaintiff was not relevant for permitting him to withdraw the suit if he wanted to withdraw the suit unconditionally. It is required to be noted that question regarding whether the respondent no.1 is required to be transposed as plaintiff under Order 23 Rule 1(A) of the Code arose subsequently for determination and the first question, which requires consideration is whether the plaintiff can be permitted to withdraw the suit unconditionally and if it is held that the plaintiff is entitled to withdraw the suit, naturally, there is no question of permitting the defendant/respondent to be transposed as the plaintiff. 21. As pointed out earlier, respondent no.1 herein, who wanted to be transposed in the present suit as the plaintiff can raise all the available contents in its own suit being Special Civil Suit No. 139 of 2005 including the admission if any made by the present plaintiff in the suit in question. Therefore, the trial court has failed to exercise its jurisdiction by not permitting the plaintiff to withdraw the suit unconditionally and has exercised its jurisdiction with malafide irregularity, and therefore, the order in question is required to be quashed by this Court by exercising the powers underArticle 226andArticle 227of the Constitution of India. The plaintiff of the original Regular Civil Suit No. 91 of 2001 cannot be compelled to continue his suit even if he wants to withdraw it unconditionally by permitting the defendant to be transposed as the plaintiff alongwith the original plaintiff. 22. The judgment relied upon by the learned advocate for the respondent no.1 in case ofR. Dhanasundari @ R. Rajeswari v. A.N. Umakanth & Ors, reported in 2019(4) Scale would not be applicable to the facts of the present case. 23. Under these circumstances, impugned common order passed below Ex. 124 and 132 in Regular Civil Suit No. 91 of 2001 stands quashed and set aside. The plaintiff of Regular Civil Suit No. 91 of 2001 is permitted to withdraw the suit unconditionally. Effect of this order would be that the suit stands disposed of from the file of learned Senior Civil Judge, Vadodara. The order passed below Ex. 132 permitting the defendant No.1 and 2 in the suit transposing them as plaintiffs stands quashed and set aside. Since the Special Civil Suit No. 139 of 2005 filed by the defendant no.1 is pending before the trial court, trial Court may dispose of the suit expeditiously. Accordingly, present petition stands allowed. Rule is made absolute to the aforesaid extent. Interim relief, any any, granted earlier stands confirmed. ORDER IN CIVIL APPLICATION NO. 1 OF 2015 IN SPECIAL CIVIL APPLICATION NO. 2083 OF 2015: In view of the order passed in the main matter ie. Special Civil Application No. 2083 of 2015, present application does not survive and accordingly, stands disposed of.
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