Transposition of Defendant as Plaintiff under Order I Rule 10 — No Prejudice to Brothers and Concurrent Findings upheld.
Defendant to plaintiff
مدعا علیہ کو مدعی بننے کی اجازت مل گئی۔
پس منظر
اہم نکات
1. بیٹے کی اٹارنی شپ متنازع:
2. غلط جواب دعوی کا دعویٰ:
3. Transposition محض طریقہ کار کا معاملہ
4. بھائیوں کو کوئی prejudice نہیں ہوا:
5. اصل تنازع کا مؤثر فیصلہ مقصود:
6. Dominus Litis کا اصول محدود:
7. اٹارنی شپ کا فیصلہ ٹرائل میں ہوگا:
8. Concurrent Findings برقرار:
عدالتی مشاہدات
فیصلہ
Must read judgement
2025 C L C 506
[Peshawar (Mingora Bench)]
Before Muhammad Naeem Anwar, J
ANWAR ALI and others ---Petitioners
Versus
Mst. SAEEDA BIBI and others ---Respondents
Writ Petition No. 1212-M of 2020, decided on 24th June, 2024.
(a) Civil Procedure Code (V of 1908)---
----O. I, R. 10 ---Addition or striking out of parties, doctrine of---Transposition of parties from one side (array of parties) to another side---Application of defendant for transposition from the panel of defendants to that of the plaintiffs---Scope---Attorney, appointment of---Scope---Plaintiff/sister filed suit against her two brothers and other sister (defendants) suit was resisted by all three defendants---However, pending adjudication of the suit, other sister (one of the defendants) moved an application before the Trial Court, seeking her transposition from the panel of defendants to that of the plaintiffs---Ground taken by defendant/sister (applicant) was that due to alleged connivance of her brothers (defendants), she had put her thumb impression on a document and appointed her own son as an attorney ( son/attorney)---Trial Court allowed said application , which order was maintained by the District Court---Petitioners (defendants/brothers) filed constitutional petition against concurrent orders---Validity---Admittedly, the deceased predecessor had left behind two sons (petitioners/defendants) and two daughters i.e the plaintiff and one of the defendants/applicants---No doubt, there was a power of attorney in favour of the son of applicant/sister, who was now before the Court through her husband---As per the application as well as stance of husband (special attorney) of applicant/sister), the power of attorney in favour of son was not correct---It was indisputable that written statement on behalf of applicant/sister was filed by her son, the alleged attorney---Admittedly, the fact of appointment of son as attorney had been denied by applicant/sister through her application signed by her husband as an attorney---Irrespective of the fact that the application was categorically resisted by the petitioners/brothers and without going into the controversy and resolution of the fact as to whether son was appointed as an attorney and in that capacity, he had filed written statement , or otherwise, such fact shall be determined/ resolved by the Trial Court but after recording of pro and contra evidence---No illegality, irregularity or jurisdictional defect had been noticed in concurrent findings of both the Courts below---Constitutional petition, being merit-less, was dismissed, in circumstances.
(b) Civil Procedure Code (V of 1908)---
----O. I, R. 10---Addition or striking out of parties, doctrine of---Transposition of parties from one side (array of parties) to another side---Application of defendant for transposition from the panel of defendants to that of the plaintiffs---Scope---Application of defendant for transposition from the panel of defendants to that of the plaintiffs---Plaintiff/sister filed suit against her two brothers and other sister (defendants)---Suit was resisted by all three defendants---However, pending adjudication of the suit, other sister (one of the defendants) moved an application before the Trial Court, seeking her transposition from the panel of defendants to that of the plaintiffs---Ground taken by defendant/sister (applicant) was due to the alleged connivance of her brothers (defendants), she had put her thumb impression on a document and appointed her own son as an attorney (son/attorney)---Trial Court allowed said application, which order was maintained by the District Court---Petitioners (defendants/brothers) filed constitutional petition against concurrent orders---Contention of the petitioners/brothers was that after submission of the written statement, applicant/sister could, in no way, resile from her earlier stance---Validity---Fact of appointing son/attorney had been negated by applicant (defendant/sister) and was corroborated by her husband, who was before the Court---Transposition of a party from the array of plaintiffs or defendants and for that matter the appellants or respondents is a procedural matter, which is decided in view of the plea, or a fact alleged in the plaint or controverted through reply/written statement---No illegality, irregularity or jurisdictional defect had been noticed in concurrent findings of both the Courts below---Constitutional petition, being merit-less, was dismissed, in circumstances.
Rukhsana Mashadi v. Qasim PLD 2002 Karachi 542 and Central Government of Pakistan v. Suleman Khan PLD 1992 SC 590 ref.
(c) Civil Procedure Code (V of 1908)---
----O. I, R. 10 ---Addition or striking out of parties, doctrine of---Prejudice, absence of---Transposition of parties from one side (array of parties) to another side---Application of defendant for transposition from the panel of defendants to that of the plaintiffs---Scope---Application of defendant for transposition from the panel of defendants to that of the plaintiffs---Plaintiff/sister filed suit against her two brothers and other sister (defendants)---Suit was resisted by all three defendants---However, pending adjudication of the suit, other sister (one of the defendants) moved an application before the Trial Court, seeking her transposition from the panel of defendants to that of the plaintiffs---Ground taken by defendant/sister (applicant) was that due to alleged connivance of her brothers (defendants), she had put her thumb impression on a document and appointed her own son as an attorney (son/attorney)---Trial Court allowed said application, which order was maintained by the District Court---Petitioners (defendants/brothers) filed constitutional petition against concurrent orders---Validity---By transposition of applicant (sister) from the panel of defendants to the panel of the plaintiffs, no prejudice had been caused to the petitioners, who were the brothers of applicant and plaintiff, being the sons of predecessor-in-interest of parties and the fact of submission of the written statement of applicant by alleging therein that a portion of the property was transferred to her, would be determined when she would be in the witness box either in person or through attorney---No illegality, irregularity or jurisdictional defect had been noticed in concurrent findings of both the Courts below---Constitutional petition, being merit-less, was dismissed, in circumstances.
Mian Abdul Waheed v. Mst. Amtul Hamid and others PLD 1962 (W.P) Lahore 114 ref.
(d) Civil Procedure Code (V of 1908)---
----O. I, R. 10 --- Addition or striking out of parties, doctrine of---Transposition of parties from one side (array of parties) to another side---Application of defendant for transposition from the panel of defendants to that of the plaintiffs---Scope---Application of defendant for transposition from the panel of defendants to that of the plaintiffs---Plaintiff/sister filed suit against her two brothers and other sister (defendants)---Suit was resisted by all three defendants---However, pending adjudication of the suit, other sister (one of the defendants) moved an application before the Trial Court, seeking her transposition from the panel of defendants to that of the plaintiffs---Ground taken by defendant/sister (applicant) was that due to alleged connivance of her brothers (defendants), she had put her thumb impression on a document and appointed her own son as an attorney (son/attorney)---Trial Court allowed said application, which order was maintained by the District Court---Petitioners (defendants/brothers) filed constitutional petition against concurrent orders---Validity---In transposition, a person who is already on record as a plaintiff or a defendant seeks his transposition from one capacity to another capacity i.e. from plaintiff to defendant or vice versa---Since primary object of O. I, R. 10 of C.P.C., 1908, is to avoid multiplicity of proceedings, there is no reason why the doctrine of addition or striking out parties does not apply to transposition of parties from one side to another---No illegality, irregularity or jurisdictional defect had been noticed in concurrent findings of both the Courts below---Constitutional petition, being merit-less, is dismissed, in circumstances.
Saila Bala Dassi v. Nirmala Sundari Dassi AIR 1958 SC 394 ref.
(e) Civil Procedure Code (V of 1908)---
----O. I, R. 10 ---"Dominus litus", principle of---Addition or striking out of parties, doctrine of---Transposition of parties from one side (array of parties) to another side---Application of defendant for transposition from the panel of defendants to that of the plaintiffs---Scope---A court can order the transposition of parties in an appropriate case---No doubt ,the plaintiff is dominus litus and master of his suit, who files his suit against the person against whom he has some sort of claim, and he cannot be urged to add a person as defendant if he does not wish to do so---The court will unceasingly consider the wishes of the plaintiff before adding a third person as a defendant in the suit---However, if the court finds that addition of the new defendant is absolutely essential and cannot be avoided to enable it to adjudicate effectively and completely the matter in controversy between the parties, it will add a person as a defendant even without the consent of the plaintiff---The principle of dominus litus cannot be overstretched in the matter of impleading or transposition of parties, because it is the duty of the court to ensure that for deciding the real matter in dispute if a person is a necessary party, the court can direct the addition, striking or even the transposition of the parties from the plaintiff to defendant or defendant or plaintiff vice versa depending upon the facts of the case---No illegality, irregularity or jurisdictional defect had been noticed in concurrent findings of both the Courts below---Constitutional petition, being merit-less, is dismissed, in circumstances.
Fayaz Muhammad Qazi for Petitioners.
Razi Khan for Respondents.
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