Dalichand Gulabchand vs Premchand Dungarshi and Others

Chhatpar, J.—This revision application has been filed to revise an order of the Civil Judge; Junior Divisions Kundla, ordering that opponents

2 to 8 be transposed as Plaintiffs along with the applicant who was the original Plaintiff. The applicant had filed a suit against opponent 1 Sheth

Premchand Dungarshi, claiming a sum of money in respect of certain transactions entered into between opponent 1 and the firm of Anantrai

Raichand. The Plaintiff stated that this firm of Anantrai Raichand. was a joint family firm and he was a member of the joint family the Ors. being

opponents 2 to 8. But by a partition effected in the year 1945, the businessmen of this firm along with its assets and liabilities were awarded to his

share and therefore he is solely entitled to claim the amount 1. Opponent 1. raised a plea that the suit by the Plaintiff alone was not competent and

that the other member of the family should be made parties. To avoid the plea of non-joinder the Plaintiff made an application for the joint joineder

and consequently opponents 2 to 8 were joined as to-Defendants. Thereafter these freshly joined Defendants filed an application that they should

be transposed as Plaintiffs, and they (sic) that they having an interest in the firm of Anantrai Raichand, were interested in the claim against opponent

This application was granted by the trial Court Judge. Against this order the original Plaintiff has filed the present revision application.

I have heard the learned Advocate for the applicant and the opponent who have appeared. Mr. shah, the learned advocate for the applicant

contends that in view of the fact that the Plaintiff claims that he is solely entitled to recover the amount from opponent 1. The joinder of the other

opponents as co-Plaintiffs was not legal as he claims the amount even adversely against the other opponent who have been newly joined He has a

right to get adjudication that there was a partition of the family by virtue of which he became the owner of the outstanding against the first

opponent. In the determination of this issue it will be necessary that opponents 2 to 8 should be ranged as opposite parties and consequently they

cannot be transposed as Plaintiffs.

In my opinion this argument is sound and the learned trial Court Judge has committed an irregularity in procedure in denying the Plaintiff the right

to get adjudication on this issue that he was solely entitled to the debt against the first opponent. The first opponent who is represented by Mr. J.L.

Hathi has supported the contention of the applicant. He states that his object in raising the plea that the other coparceners were necessary parties

was that so far as opponent 1 is concerned, he should get a valid discharge, in case any decree is passed against him in respect of the alleged

outstanding.

In the view that I take, I am of the opinion that the learned Civil Judge has committed an error in the exercise of jurisdiction in transposing

opponents 2 to 8 as Plaintiff. In this view of mine I am supported by a decision of the Allahabad High Court given in the case of Musammat Jarao

Kunwar Vs. Rani Bhagwan Kunwar and Others, wherein it was observed as under:

Where a Plaintiff A claims to have sole right to a certain sum of money due from a Defendant B, and where he makes a third person C, who claims

as against himself (A), a party to the suit. It is impossible in the course of that suit to make the opposing and contesting claimant a Plaintiff in place

of A. To do so would be to deprive A of his power to sue and ask for a determination upon his claim.

I accordingly set aside the order of the lower Court. The applicant will have his costs from opponents 2 to 8. Opponent 1 will bear his own

costs.