Baldev Raj Gupta, and Others vs Jaswant Singh and Others

Mian Jalal-ud-din Ag., C.J.—In the above Letters Patent appeals, applications have been made on behalf of the State through Shri A.D.

Singh, Advocate, for transposition of the State as an Appellant. This order will dispose of all the applications.

It is submitted that the Appellants in the above mentioned appeals and the State have identical interests and as such it would be convenient for

the State and would also be in the interest of justice to transpose the State, which already figures as a Respondent in these appeals, as Appellant.

These applications have been seriously contested by Respondent No. 1. His objections are that these applications are not maintainable, that the

Appellants and the State have absolutely no identical interests and, therefore, the State cannot be transposed as an Appellant. A valuable right has

accrued in favour of Respondent No. 1 by lapse of time and, therefore, the State cannot be allowed to be transposed as an Appellant in the said

appeals. It is further averred that there can be complete adjudication of the case even the State figuring as Respondent and there can be no

question of multiplicity of proceedings. The State has not disputed the impugned order and has not filed any appeal against that. In view of all this,

it is prayed, that these applications be rejected.

Shri N.D. Qureshi, Special Secretary to Govt. Finance Department, Jammu and Kashmir Government, has sworn a rejoinder affidavit on behalf

of the State. In the said affidavit, he has affirmed that the transposition of the State as an Appellant is necessary as the Appellants have identical

interests with the Stats and therefore, it will be convenient to dispose of the appeals. The mere fact that the appellate court has stayed the operation

of the impugned judgment and has made an order against the State in this regard, does not imply any clash of interest between the Appellant and

the State, for the parties at length.

We have heard the learned Counsel for the parties at length.

At the outset, Shri S.P. Gupta, appearing for Respondent No. 1 raised the contention that transposition of the parties can be ordered only under

Order 1 Rule 10 Code of Civil Procedure. That order does not apply to writ proceedings much less to an appeal against the judgment rendered in

writ proceeding. It is submitted that in view of this, the court has got no power to order transposition of the State as Appellant in these appeals.

I am afraid this contention is not well founded, inasmuch as the principle underlying Order 1 Rule 10 CPC is applicable to writ proceedings as

well. The High Court while exercising extraordinary powers of writ jurisdiction is a court of civil jurisdiction and the provisions of CPC do apply to

writ proceedings. In Ibrahimbhai Karimbhai and Others Vs. State of Gujarat, a Division Bench of that court has laid down the view that the High

Court issuing a writ of certiorari is a court of civil jurisdiction within the meaning of Section 141 CPC and, therefore, the rules engrafted in the

Code do apply to writ proceedings in the High Court. Again in Krishnalal Sadhu and Others Vs. State of West Bengal and Others, , a Division

Bench of that court held that Section 141 of the CPC is directly attracted to an application under Article 226 of the Constitution and so such

provisions of the CPC as can be suitably applied to writ proceedings are applicable to such proceedings. The above-mentioned two cases dealt

with the question relating to abatement and substitution of the legal representatives of a deceased party under Order 22 of the Code. It is,

therefore, held that Order 1 Rule 10 CPC applies to writ proceedings and there is no bar for the court to consider the question of transposition of

the Respondent as an Appellant in an appeal against the judgment rendered in writ petition. The contention advanced is, therefore, overruled.

The applications of the State seeking transposition as Appellants in the appeals however, require to be decided after we take into consideration

the back-ground of the case. Sardar Jaswant Singh, Respondent, herein, filed a writ petition against the State of Jammu and Kashmir and also the

other Respondents challenging the appointments of Respondents Nos. 3 to 23 as Excise and Taxation Officers. The learned single Judge who

heard the writ petition partly allowed it as against Respondents Nos. 3 to 8 and quashed the order of appointment of these Respondents. Some of

the Respondents have come in Letters Patent Appeals before this Court. The State has not filed any appeal against the impugned judgment, but the

State does figure as Respondent in those appeals. Jaswant Singh has also filed a cross appeal against the impugned judgment, He has assailed the

judgment of the learned single Judge on the ground that he has not passed any order in respect of Respondents Nos. 9 to 23. According to him the

appointments of these Respondents were also illegal and against rules and as such deserved to be quashed.

The question that, however, falls for consideration is whether these applications should be allowed and the State transposed as Appellant.

Ostensibly there does not appear to be any class of interest between the State and the Appellants. It is true as observed by their Lordships of the

Supreme Court in Saila Bala Dassi Vs. Sm. Nirmala Sundari Dassi and Another, that the court can if necessary take action suo motu either under

Order 1 Rule 10 or in its inherent jurisdiction and transpose an Appellant as Respondent and vice versa in the appeal. But even then the court has

to decide this matter on the touchstone of the established principles. One of the principles is that if there is bona fide mistake as to the rights,

capacity, or status of a party and it is necessary to save the Respondent, who was labouring under a bona fide mistake with regard to his rights,

from the consequences of losing his claim, the court will surely pay attention to this and determine the application for transposition in favour of that

party. But the court in that case has to take cognizance of an important fact that the order of substitution or transposition does not take away a

valuable right that might have accrued to the adverse party. Now in the instant case, it is noticed that after the judgment was rendered in the writ

petition, the State did not move its little finger to come up in appeal against that judgment. Time ran out against the State. In the meanwhile the

Appellants filed their respective appeals against the judgment of the learned single Judge. So did Jaswant Singh. Shri S.P. Gupta has taken pains to

elaborate on the proposition that the State bona fide believed that it may not come up in appeal because of the stand taken by it before the learned

single Judge. It is submitted that it was not disputed before the learned single Judge by the State that the case of the Respondent No. 1 had not

been considered at the time of the appointments of the Appellants and, therefore, it must be presumed that on this assumption the State which is

not interested in any party but aims at the welfare of all citizens, decided not to file appeal in this particular case. I do find force in his arguments. If

the State was so earnest about the matter, as it is now, what prevented it from filing the appeal in time? Again if relief can be granted in these

appeals that will equally satisfy the claim of the State as well. In that view of the matter, the question of transposition loses significance. As a matter

of fact it is only when the court is in doubt as to which of the parties, whether the Appellant or the Respondent can be afforded relief, that the court

will order transposition. But as already stated that, indeed, is not the problem before us. Here the State as Respondent can urge the same thing as

it could as an Appellant. The other party cannot shut out its case. There is, therefore, no necessity of ordering transposition of the State as

Appellant much less when a valuable right has already accrued to Respondent No. 1 by lapse of time.

For the foregoing reasons, we, therefore, reject these applications. Let the main appeals come up for hearing at an early date to be fixed by the

Deputy Registrar.

G.M. Mir, J.

I agree.

P.S. The observations made above will not, however, be construed to mean any expression of opinion on the merits of the case.