TRANSPOSITION OF DEFENDANT AS APPELLANT

Under Order I Rule 10

In a Partition Suit

The court has power under sub-rule 2 of Rule 10 of Order I to transfer a defendant to the category of
plaintiffs. Sub-rule 2 of Rule 10 is as follows:

(2) Court may strike out or add parties--The court may at any stage of the proceedings, either
upon or without the application of either party, and on such terms as may appear to the Court to
be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be
struck out, and that the name of any person who ought to have been jointed, whether as plaintiff
or defendant, or whose presence before the Court may be necessary in order to enable the Court
effectually and completely to adjudicate upon and settle all the questions involved in the suit, be
added.
When Can a Transposition be Made?

Rule 1A of Order XXIII A states as follows:

When transposition of defendants as plaintiffs may be permitted-- Where a suit is withdrawn or

abandoned by a plaintiff under rule 1, and a defendant applies to be transposed as a plaintiff under rule
10 of Order 1, the Court shall, in considering such an application, have due regard to the question
whether the applicant has a substantial question to be decided as against any of the other defendants.

Transposition could be done by the court:

 suo moto, or
 on application of the defendant, provided that the defendants’ claim is founded on the same
cause of action.
In a suit for partition, the court can transpose any defendant as plaintiff and grant any relief even though
the plaintiffs are found not entitled to any share (Kunhammad v. Chandramma, AIR 1965 Ker 76.) The
court including the high court in appeal, can transpose a defendant as plaintiff, if necessary, suo motu, to
do complete justice between the parties (Maddanappa v. Chandramma, AIR 1965 SC 1812).

1. M.S. Hoda v. Dipti Mukherjee AIR 2006 Jhar 13

Para 7

Rule 1A of Order XXIII provides for transposition of the defendant as the plaintiff but in a case where the
suit is withdrawn or abandoned by the plaintiff under Rule 1 and one of the defendants applies for
his transposition as a plaintiff. The Court in that case has to consider such application and if there
is any substantial question to be decided as against any of the other defendants then in that case
transposition can be allowed to continue with the suit. Rule 1A envisages transposition of a
defendant to proceed with the suit against one or the other defendant's) if there is any substantial
question to be decided as between the defendants and not against the original plaintiff.

2. Mahitosh Sinha Vs Shyamapada Sinha and Ors [AIR 2006 Ori 20]

Para 5

…only when interest and identity, are same between the plaintiff and one or more of the
defendants, transposition is permissible. This view has also been repeated by the Karnataka High
Court in the case, of Sulemanji Sanibhai v. Abde Ali (1995 JLJ 338).

Learned Counsel for the defendant No. 4 opposite party relied on a decision of this Court in the case of
Gokulananda Jena v. Jaduriath Jena reported and submitted that transposition of a party should be
allowed where it is necessary for complete adjudication upon the questions involved in the suit
and to avoid multiplicity of proceedings.

3. R. Dhanasundari Vs. A.N. Umakanth and Ors [2019 (2) CGLJ 24]

Para 7

…we are clearly of the view that on the facts and in the circumstances of this case, upon the existing
Plaintiffs seeking permission to withdraw Under Order XXIII Rule 1 Code of Civil Procedure, the
Defendant Nos. 3 to 6 have rightly been allowed to be transposed as Plaintiffs Under Order XXIII
Rule 1-A read with Order I Rule 10 Code of Civil Procedure and to continue with the suit, as originally
filed against the Defendant Nos. 1 and 2.

Para 8

…Rule 10 of Order I specifically provides for addition, deletion and substitution of parties; and the
proposition for transposition of a party from one status to another, by its very nature, inheres in
Sub-rule (2) of Rule 10 of Order I Code of Civil Procedure…

Para 10

…The very nature of the provisions contained in Rule 1A leaves nothing to doubt that the powers of the
Court to grant such a prayer for transposition are very wide and could be exercised for effectual and
comprehensive adjudication of all the matters in controversy in the suit. The basic requirement for
exercise of powers Under Rule 1A, would be to examine

 if the Plaintiff is seeking to withdraw or to abandon his claim Under Rule 1 of Order XXIII
and
 the Defendant seeking transposition is having an interest in the subject-matter of the suit
and thereby,
 a substantial question to be adjudicated against the other Defendant.

In such a situation, the pro forma Defendant is to be allowed to continue with the same suit as
Plaintiff, thereby averting the likelihood of his right being defeated and also obviating the
unnecessary multiplicity of proceedings.

Transposition Could be Made on the Appellate Level

1. Govinda Iyer v. Kumar AIR 1980 Mad 232

Para 5

…Though the learned counsel for the respondents 2 to 7 contended that Order 23, Rule 1A, C. P. C. will
apply only to a suit and not to a second appeal, as in this case, I am of the view that in view of Section
107 of the Code, the procedural provisions applicable to suits can also be applied to appeals or
second appeals as far as it is practicable. We have to, therefore, proceed on the basis that the court
has got power to transpose a respondent as appellant when the appellant seeks to withdraw or
abandons the appeal in suitable cases.

2. KK Abraham v. Joseph Verghese

Para 7
Even though Order XXIII Rule 1A and O.I Rule 10 C.P.C. refers to the expression 'suit' and the 'plaintiff, it
cannot, for that reason, be sought to restrict the application of the provision to a proceeding in a suit alone
since the appeal is the continuation of the proceedings of the suit and in the absence of any
separate provision to deal with such a situation it has to be held that the principles contained
under Order XXIII Rule 1A and Order I Rule 10 must apply to the proceedings in appeal as well.

In this connection, reliance was placed on the decision of the Madras High Court in Govinda Iyer v.
Kumar (AIR 1980 Mad 232) wherein it has been held that by virtue of Section 107 and Order XXIII
Rule 1A the Court can transpose a respondent as appellant when the appellant seeks to withdraw
or abandon the appeal.

…Hence the application filed by the petitioner herein for transposing himself as an appellant
cannot be rejected on the mere ground that the application was filed in an appeal and not in a suit,
since as already observed above, the provisions of Order XXIII Rule 1A read with Order I Rule 10 C.P.C.
will apply to a proceeding in appeal as well. A respondent in an appeal is entitled to seek himself to be
transposed as an appellant, if he satisfies the conditions otherwise.

Para 13

The civil revision petitions are disposed of.

The order impugned is set aside and the matter is remitted to the court below for fresh consideration of
the application for transposition filed by the petitioner herein as I.A. 50 of 2000.

3. Kiran Tandon Vs. Allahabad Development Authority and Ors. [AIR 2004 SC 2006]

Para 4

…It is well settled that the Court has power under Sub-rule (2) Order I Rule 10 CPC to transfer a
defendant to the category of plaintiffs and where the plaintiff agrees, such transposition should be readily
made. This power could be exercised by the High Court in appeal, if necessary, suo motu to do
complete justice between the parties. This principle was laid by the Privy Council in Bhupendra
Narayan Sinha v. Rajeshwar Prosad AIR 1931 PC 162 and has been consistently followed by all the
Courts.…