DINESH MAHESHWARI.J. - (1.) This appeal by special leave is directed against the judgment and order dated 12.10.2006, as passed in C.R.P. (PD) No. 10 of 2006, whereby the High Court of Judicature at Madras has upheld the order dated 07.07.2005, as passed in O.S. No. 219 of 2004 by the District Munsif, Chengalpattu allowing the application filed by defendant Nos. 3 to 6 for transposing them as plaintiffs, after the existing plaintiffs sought permission to withdraw the suit.
(2.) The prayer of defendant Nos. 3 to 6 to be transposed as plaintiffs under Order XXIII Rule 1-A read with Order I Rule 10 of the Code of Civil Procedure, 1908 ('CPC'), came to be made and allowed in somewhat peculiar set of facts and circumstances, which could be noticed, in brief, as follows:- (a) The civil suit in question was originally instituted in the Court of the Principal Subordinate Judge, Chengalpattu by A.C. Nataraja Mudaliar (original plaintiff) against A.V. Manoharan (defendant No.1 - respondent No. 1 herein) and R. Dhanasundari @ R. Rajeshwari (defendant No. 2 - appellant herein) for cancellation of the sale deed dated 23.03.1985, which was executed by defendant No. 1 in favour of defendant No.2. This suit was initially registered as O.S. No. 122 of 1989. (b) The assertions in the plaint had been that the suit schedule property was purchased in the name of a partnership firm M/s South India Engineering Works of which, the plaintiff and the defendant No. 1 were the partners; and that the said firm was dissolved by a deed of dissolution dated 22.05.1971 whereby, the defendant No. 1 A.V. Manoharan was relieved of the assets and liabilities of the firm and the suit schedule property vested with the plaintiff A.C. Nataraja Mudaliar. It was alleged that the defendant No. 1 A.V. Manoharan, despite having relinquished the rights in the suit property, sold the same to the defendant No. 2 under the impugned sale deed dated 23.03.1985. (c) During pendency of this suit, the original plaintiff A.C. Nataraja Mudaliar expired on 19.05.1988 leaving behind 3 sons and 4 daughters as his legal representatives, who were impleaded as plaintiff Nos. 2 to 8 in the suit. One of the sons of the original plaintiff namely, A. N. Umakanth (plaintiff No. 5-respondent No. 1 herein) was extended power of attorney by his siblings. (d) The suit was decreed ex pane in the year 1995 but later on, the ex pane decree was set aside and the suit was restored to the original number. However, in the interregnum, the respondent No. 1 A. N. Umakanth, the power of attorney holder of all the legal representatives of the original plaintiff, sold the suit property to three persons, namely Ramasamy, Dhanam Ramasamy and Venkatasubramanian (respondent Nos. 2 to 4 herein) through a registered sale deed dated 04.07.1995. In view of this transaction, upon restoration of the suit, the said purchasers moved an application (IA No. 135 of 2002) for being impleaded as plaintiffs. This application was allowed on 21.06.2002 and thereby, the said purchasers were allowed to join the suit as plaintiffs Nos. 9 to 11. (e) However, the other plaintiffs (Nos. 2 to 4 and 6 to 8) took exception to the aforesaid transaction of sale by the plaintiff No. 5; they revoked his power of attorney and moved an application (IA No. 468 of 2003) for transposition of the plaintiff No. 5 and his purchasers (plaintiff Nos. 9 to 11) as defendants. This application was allowed on 25.06.2003 and, accordingly, the plaintiff No. 5 and plaintiff Nos. 9 to 11 were transposed as defendants 3 to 6 in this suit. (f) Thus, at and until the given juncture, the proceedings and developments had been that in the civil suit for cancellation of sale deed executed by the defendant No. 1 in favour of the defendant No. 2, the original sole plaintiff had expired; his legal representatives came on record as plaintiff Nos. 2 to 8 with plaintiff No. 5 being the power of attorney holder of the other plaintiffs; the suit was decreed ex parte and the said attorney sold the suit property to three persons; when the ex parte decree was set aside and the suit was restored to its number, the said purchasers came on record as plaintiff Nos. 9 to 11; and later on, the said seller and purchasers (plaintiff Nos. 5 and 9 to 11) were transposed as defendant Nos. 3 to 6. At this juncture and with such change of complexion, the suit was transferred to the file of District Munsif Court, Chengalpattu and was renumbered as O.S. No. 219 of 2004. (g) After having, thus, been transferred and renumbered with addition and transposition in the array of parties, the suit in question proceeded in trial but, when the matter reached the stage of cross-examination of the defendants' witness DW-3, the plaintiffs filed a memo seeking permission to withdraw the suit, for the matter having been settled with the defendant Nos. 1 and 2. Though the defendant Nos. 1 and 2 did not oppose the prayer so made by the plaintiffs but then, the defendants 3 to 6 (who were transposed as defendants from their earlier position as plaintiffs) filed objections to the memo for withdrawal and also filed the application (IA No. 153 of 2005) under Order XXIII Rule 1-A read with Order I Rule 10 CPC with the prayer that they be transposed as plaintiff Nos. 2 to 5 in this suit.
(3.) The said application for transposition (IA No. 153 of 2005) came to be allowed by the Trial Court by its impugned order dated 07.07.2005 with the following observations:- "Upon perusing the petition, counter it reveals that the original suit was filed in the year 1989. Originally the petitioner has filed the above suit as a Power of Attorney agent of plaintiffs. When the power was in force, the power given to the petitioner was cancelled. When the power was inforce, the petitioner sold most of the suit item. The purchasers moved an application to implead themselves as plaintiffs in the above suit and the same was allowed. Later the plaintiffs have filed application to transpose the plaintiffs 5, 9 to 11 as defendants and the same was allowed. Later the trial commenced and the plaintiff witness had been examined. On the side of defendants 3 witnesses were examined. The cross-examination of 2nd defendant's husband has been deferred. At this stage the plaintiff and the 2nd defendant entered into compromise and filed a memo stating that the suit is not pressed as settled out of court. The petitioner sold the property while the power of attorney was in force. Therefore the petitioner has interest in the out come of the suit. When the case is at the tail end and the suit is of the year 1989 and if the suit is allowed to be withdrawn this petitioner has no remedy and is not in a position to get any remedy in this suit. More over the petitioners if file fresh suit, the said suit will be barred by limitation. When all the parties to the suit entered into compromise, the court will permit the parties to withdraw the suit. But in this case only the plaintiff and 2nd defendant alone entered into compromise. The remaining defendants are not parties to the compromise. Since there is no compromise with other defendants, this court will not accept as the matter is fully settled. For the aforesaid reasons and in the interest of justice and to settle the matter once for all and determine the rights of the parties, this petition is allowed." ;