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Judgment
Supratim Bhattacharya, J.:
The learned advocate representing the petitioner submits that, through the impugned order dated 1.12.2025, passed by the learned Trial Judge, i.e. Civil Judge (Senior Division) 4th Court Alipore, South 24 Parganas, in Ejectment Suit No. 55 of 2022, has allowed an application seeking transposition of one of the plaintiffs to the category of proforma defendant and the said application was under Order VI Rule 17 of the Code of Civil Procedure read with Section 151 of the said Code.
The learned advocate also submits that as regards to the amendment sought for under the said application the petitioner does not have any objection, but the objection is as regard to the transposition of the plaintiff no.2, namely, Santosh Shaw, who has been allowed to be transposed in the array of proforma defendant.
He further submits that, under Order VI Rule 17 there is no provision for transposition instead it ought to be under Order I Rule 10 sub-Rule (2) or under Order XXIII Rule 1(A) of the said Code.
In support of his contention the learned advocate has relied upon an authority published at (2020)14 Supreme Court Cases 1 and has also relied upon a judgment published at 2024 SCC Online Patna 8327.
Learned advocate has stressed upon the law of procedure relating to the parties to a civil suit and has emphasised that essentially that Order I of the Code of Civil Procedure deals with various aspects concerning joinder, non-joinder and mis-joinder of the parties and Rule 10 of the said order specifically provides for provision regarding deletion and substitution of parties.
In respect of the judgment passed by a Co-ordinate Bench of Patna High Court, the learned advocate has relied upon paragraph 7 and has submitted that the inherent powers are to be exercised by the Court in very exceptional circumstances for which the Code lays down no procedure.
Banking upon the aforementioned authorities the learned advocate has sought for allowing the present civil revision.
Per contra the learned advocate representing the opposite parties no.1/plaintiff submits that, through the application under Order VI Rule 17 apart from transposition from the array of plaintiff to the pro forma defendant the plaintiff has sought for further other amendments which have been specifically laid down in the said application in details, as because the suit property involved before the Trial Court has come to be in the portion of the plaintiff no. 1 and the plaintiff no.2 has obtain separate portion which does not contain the suit property. As such, the original plaintiff no.2 has no right, title and interest in respect of the suit property. Which has compelled the plaintiff no. 1 to file the application under Order VI Rule 17.
The learned advocate has further submitted that through the said application under Order VI Rule 17 amendment was sought for in addition transposition of a party and has further submitted that apart from Order VI Rule 17 there is mention of Section 151 of the said Code.
In support of her contention the learned advocate has relied upon a judgment of an Hon’ble Division Bench of this Court published in AIR 2009 Calcutta 160 and has relied upon paragraph 13 of the said judgement wherein, a judgement of Hon’ble Five Judges of the Hon’ble Apex Court passed in the case of Union of India vs. Tulsiram Patel, (1985) 3 SCC 398 has been referred. In this said judgment it has been quoted:
“ 13. A Five Judge Bench of the Supreme
Court in the case of Union of India v. Tulsiram Patel, (1985) 3 SCC 398: (AIR 1985 SC 1416) at page 501 held as follows:
“........It is also well settled that where a source of power exists, the exercise of such power is referable only to that source and not to some other source under which were that power exercised, the exercise of such power would be invalid and without jurisdiction. Similarly, if a source of power exists by reading together two provisions, whether statutory or constitutional, and the order refers to only one of them, the validity of the order should be upheld by construing it as an order passed under both those provisions. Further, even the mention of a wrong provision or the omission to mention the provision which contains the source of power will not invalidate an order where the source of such power exists. (See Dr. Ram Manohar Lohia v. State of Bihar (AIR 1966 SC 740) and Municipal Corporation of the City of Ahmedabad v. Ben Hiraben Manilal (1983 (2) SCC 422). The omission to mention in the impugned orders the relevant clause of the second proviso or the relevant service rule will not, therefore, have the effect of invalidating the orders and the orders must be read as having been made under the applicable clause of the second proviso to Article 311(2) read with the relevant service rule.........”
And has stressed upon that the Hon’ble Apex Court through the judgment published in AIR 1985 SC 1416 in the case of (Union of India v. Tulsiram Patel) has laid down that if a source of power exists by representing together two provisions, whether statutory or constitution, and the order refers to only one of them, the validity of the Order should be upheld by constituting it as an order passed under both those provisions. Through the said judgment it has further being laid down that even the mention of a wrong provision or the omission to mention the provision which contains the source of such power will not invalided an order where source of such power exists.
Considering the submissions of the learned advocates representing the petitioner and the opposite party no. 1, it transpires that the crux of the issue, is as to whether transfer of one of the plaintiff to the array of proforma defendant can be allowed under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure, wherein, apart from transposition further other amendments were sought for which have been laid down in details in the said application.
It is fact that Order I Rule 10 sub-Rule (2) or any other specific provision has not been mentioned in the said application but in the said application it has been mentioned that the application is being filed under Order VI Rule 17 read with Section 151 of the said Code and in the said application apart from transposition of one of the plaintiffs to the category of pro forma defendant there are several other aspects of amendment which have been laid down in details in the said application under which comes purely under purview of Order VI Rule 17 of the Code of Civil Procedure.
In such circumstance, herein there is no specific mention of Order I Rule 10 sub-Rule (2) but the amendments have been laid in details and transposition has been allowed through the said application filed under Order VI Rule 17 read with Section 151 which is not barred. In this context the judgment of the Hon’ble Apex Court supports, wherein, it has been categorically mentioned that
“if a source of power exists by reading together two provisions, whether statutory or constitutional, and the order refers to only one of them, the validity of the order should be upheld by construing it as an order passed under both those provisions. Further, even the mention of a wrong provision or the omission to mention the provision which contains the source of power will not invalidate an order where the source of such power exists.”
Among two provisions which contains the source of power it will not be invalid if one is mentioned and the other is not and even mentioning of wrong provision will not invalidate as has been laid in AIR 1966 SC 740, 1983 (2) SCC 422. As such from the above discussion it is clear that the Trial Court has not committed any error in allowing the application under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure and in addition to the amendments has transposed one of the plaintiff that is the plaintiff no. 2 to the category of pro forma defendant.
In such circumstance, this Court finds the impugned order to be corrected and requires no interference.
As such, the civil revision CO 332 of 2026 is Dismissed. Without any costs.
Urgent Photostat certified copy of this order, if applied for, be supplied to the parties upon compliance of all requisite formalities.