MUSHIR ALAM, J. -- Subject-matter was heard at length on 4.2.2002 and on 27.2.2002, following orders were passed:- This case was fixed on 4.2.2002 upon hearing of the parties. The application CMA 8936/2001 was allowed and so also CMA No. 8937/2001 was allowed and the plaint filed by the defendants Nos. 3 to 7 transposing themselves as plaintiffs Nos. 1 to 5 was rejected while going through the file and finalizing the order, I have formed tentative view that though the defendants Nos. 3 to 7 could not be transposed as plaintiff and the amended plaint filed by them cannot be taken on record, but under circumstances of the case since the defendant No. 2 by virtue of order dated 15.5.2001 and 21.5.2001 had assumed and, taken upon himself to purchase the subject property at a price higher than contracted by original plaintiff in fact had stepped into ,shoes of the plaintiff Haji Ahmed, thus could be transposed as plaintiff, such order though could be passed suo motu by the Court yet in all fairness. I would like to hear the parties on the issue.
Issue notice to all the learned counsel, for 11.3.2001.
The matter was argued by Mr. Adil Baig, and Mr. Yousuf Moulvi, Advocates.
1. CMA No. 8936/2001 is an application seeking extension of time for filing the objections on the amended plaint filed by the defendants Nos. 2 to 5. Since objections have already been Ned, the application having served its purpose stand disposed of.
2. CMA No. 8937/2001 is an application under Section 151 read with Order 2, Rule 2, CPC, whereby the defendant No. 8 has objected the filing of the amended plaint by the defendants Nos. 3 to 7 transposing themselves as plaintiffs Nos. 1 to 5.
It was contended by Mr. Farooq Naik, learned counsel for the defendant No. 8 that this is a suit for specific performance filed by plaintiff Haji Ahmed, against the Mrs. Ejaz Mashadi since deceased, succeeded by legal heirs, brought on record as defendants Nos. 2 to 8. During course of the proceeding plaintiff, HO Ahmed made an offer not to press the suit, subject to refund of the *earnest amount paid by him, to the deceased predecessor of the defendants herein. On such offer being made, defendant No:2 represented by Mr. Mirza Adil Baig, Advocate, volunteered to refund the entire amount to the plaintiff. He also undertook to obtain better offer and guaranteed to purchase subject property for Rs. 1,35,00,000/- and on failure to obtain such price within four months, amount to refunded by him would stand forfeited and further he would give up his share in the property. Learned counsel for the defendant No. 2 stated that on such refund of the amount the suit for specific performance for all intent and purpose comes to an end. However, on 3.9.2001, the defendants Nos. 3 to 7 sought time to file 'amended plaint, which time was extended. Amended plaint was filed on 19:9.2001.
3. Learned counsel for the defendants Nos. 2 and 8 seriously objected to the filing of the amended plaint on the ground inter alia, that the suit ,is for specific performance and once the' plaintiff seeks refund of earnest money no cause for specific performance remains to be enforced. In supports of his contention' that the defendants cannot be transposed as plaintiff he has relied upon Ahmed Zaman Khan, Barrister, Vs. Government. of Punjab through Collector, Multan and 2 others (1993 CLC 1327).
4. Mr. Yousuf Moulvi, learned counsel for the defendants Nos. 3 to 7, since having transposed themselves unilaterally, as plaintiffs Nos. 1 to 5 respectively, contends that the consent orders passed by this Court necessitated, the transposition of defendants Nos. 3 to 7_ as plaintiffs Nos. 1 to
5. He had drawn my attention to the order dated 7.5.2001, whereby the defendant No. 8 represented by Mr. FArooq H. Naek, stated that the value of subject property in fact is over Rs. 20,000,000/-. He was given time to fetch such price. Order dated 15.5.2001 records that earnest money was refunded by defendant No. 2 out of his own funds to the plaintiff Haji Ahmed. Said order also records that he guaranteed to purchase subject property either by himself or through his nominee for Rs.
1,35,00,000/- in case he is unable to find a buyer within four months amount of Rs. 14,50,000/- refunded by him would stand forfeited. Mr.. Adil Baig on instructions, states that subject properly presently is in occupation of defendants Nos. 1, 2 and 7. From the records it also appears that the defendant No. 2 sought further time to get maximum value for the subject property. Mr. Yousuf Moulvi, states that consent orders are binding upon the parties. The defendant No. 2 is attempting to wriggle out of the obligations arising out of such consent order. Mr. Yousuf Moulvi, argued that there is nothing on record to show that plaintiff has withdrawn from the suit. According to him, defendants Nos. 3 to 7 under circumstances, can be transposed as plaintiff so that they may be able to execute the consent orders. According to him, defendants Nos. 2 and 8 are trying to deprive other defendants from their rightful share in the property inherited from the deceased defendant.
In support of his contention that a party cannot be allowed to approbate and reprobate he relied upon the case of Yousuf Aziz v. Aqeela Begum (PLD 1978 Karachi 205).
5. I have heard the learned counsels and perused the ecord. As recorded in the narrated above.
This is a suit for specific performance of "Agreement to sell". From the record it is admitted position that the defendant No. 2 had refunded the earnest amount of Rs. 14,50,000/- to the plaintiff.
Operative part of the order dated 15.5.2001 reads as follows:- By consent it is ordered that the plaintiff upon being given a cheque of Rs. 14,50,000/- equivalent to the earnest money which was given to the deceased, shall not press his claim against the defendants any further subject to encashment of the said cheque. This cheque has been given by defendant No. 2 from his own personal funds. As per the undertaking given on the Iast date of hearing defendant No. 2 shall try and obtain the maximum price for the suit property which according to him is in excess of Rs. 2 Crore. Where the defendant No. 2 and/or his nominee is unable to find any buyer for the suit property upto the sum of Rs. 1,35,00,000/-, which he guarantees, he himself or his nominee shall purchase the suit property for this sum. As security, for such eventuality the defendant No. 2 foregoes his right to the refund of Rs. 14,50,000/- as well as his share in the suit property which according to him comes to Rs. 20,00,000/- subject of course to final adjustment. Defendant No. 2 undertakes to bring a buyer for the suit property within four months from today. However, it is agreed amongst all the learned counsel as well as the parties who are present in Court that if within such period the defendant No. 2 fails to bring a buyer for the suit property, or he or his nominee fails to purchase the suit property in the sum ,of Rs. 1,35,00,000/- the suit property shall ultimately be sold by this Court in which case the defendant No. 2 shall make up the short fall, where the sale is for an amount less than Rs. 1,35,00,000/-.
In the circumstances and in view of the foregoing arrangements, Mr. Muhammad Ali Jan, learned counsel for the plaintiff, says that he would not have any further interest in proceeding with the suit against the defendants.Mr. Mirza Adil Beg says that as per the last order dated 15.5.2001 a period of four months was given to defendant No. 2 for the purpose of either bring a purchaser for the suit property or purchase it himself. He prays that his period may be extended for further period of two months where the defendant No. 2 is unable to either bring a purchaser or purchase the suit property himself within a period of four months. By consent therefore, the time frame for doing the needful is extended upto six months. However, any further period after six months shall be extended only on the specific application of the defendant No. 2. To come up after vacations.
6. Originally plaintiff Haji Ahmed in his suit for Specific Performance had prayed inter alia for specific performance of "Agreement to Sell" in respect of Property No. ,173, 64 Britto Road, Jamshad Quarters. Alternatively for the refund of earned amount of Rs. 14,50,000/- and further sum of Rs.
1,50,00,000/-by way of damages together with consequential relief for possession and injunction.
7. As stated in the narrative above, earnest money was refunded by the defendant No. 2, subject to forfeiture in case he failed to find a suitable buyer for a higher value within 4 months. Such being the factual position on 3.9.2001 defendants Nos. 3 to 7 sought time to file amended plaint.
8. Amended plaint was filed on 19.9.2001 citing and transposing defendants Nos. 3 to 7 as plaintiffs Nos. 1 to 5 respectively and defendants Nos. 1, 2 and 8 as defendants Nos. 1 to 3 respectively seeking following reliefs:-
(A) Direct the defendant No. 2 to sell the property for a price exceeding Rs. 1,35,00,000/- or the alternative in the defendant No. 2 fails to sell the property for a price exceeding Rs. 1,35,00,000/- he himself or his nominee fails to purchase the suit property for Rs. 1,35,00,000/-he will forego his right for the refund of Rs.14,50,000/- then this Hon'ble Court may be pleased to sell the suit property through Court auction.
(B) That, if the proceeds from the 'Court auction are less than Rs. 1,35,00.000/- this Hon'ble Court may be pleased to pass orders in the fight of the consent order dated 15.5.2001, whereby the defendant No. 2 had agreed to forego his right to the refund of Rs. 14,50,000/- as well as his share in the suit property which according to him comes to Rs. 20,00,000/- and that the defendant No. 2 shall make up for the short fall.
Any other relief which this Hon'ble Court deems fit and necessary.-
9. Transposition of party, in legal parlance means to, alter or change the order or position of a party usually opposite from the position earlier herd i.e. from plaintiff to, defendant or vice versa as the case may be. Power to transpose a party emanate from powers to add, implead or strike out part as conferred on 'Courts under Rule 10 to Order 1, CPC. Such powers are exercisable by the Court, either suo motu or on the application of any of the party to the proceedings. For reference one may refer to Central Government of Pakistan and others Vs. Suleman Khan and others (PLD 1992 SC 590), Muhammad Qasim Khan and 6 others Vs. Mst. Mehboob and 6 others (1991 SCM R 515).
10. It is true, when Mr. Yousuf argued that subject property on the demise of deceased defendant had devolved upon defendants Nos. 2 to 8 being sons and daughters. But the question that has arisen is, whether in such circumstances any of the defendants Could be transposed as plaintiffs in a suit for specific performance, which was originally filed against their common predecessor.
11. Contention of Mr. Yousuf that since time to file amended plaint was granted on 3.9.2001, in the backdrop of various orders referred to above, it amounts to allowing the request of transposition defendants Nos. 3 to 7 as plaintiff, which exercise was necessitated under circumstances of case.
12. Order dated 3.9.2001 reads as under "Mr. Yousuf Moulvi is given two weeks further time to file amended plaint". From the bare reading of the above order it cannot be assumed that permission to transpose defendants Nos. 3 to 7 as plaintiffs Nos. 1 to 5 was granted by the Court and that too to seek relief as reproduced above.
13. Transposition of parties is generally allowed liberally by the Court in order to avoid multiplicity of litigation between the parties to a proceedings and to bring to an end the, controversy or list before the Court. Generally transposition is allowed in legal proceedings where parties are accountable to each other out of same or same series of transactions subject-matter of suit, like for instances suit for accounts between partners, suit for administration between the legal heirs,- suit between the coowners/joint-owners of the property or where interest of any party in same group become hostile inter se and become common with the interest of opposing parties or where interest of one party devolves, assumed, assigned or transferred unto an other party in the opposite group or otherwise. '
14. Where Court order transposition of parties either at the motion of any party or suo motu it merely places a party on one side to opposite side or allow any party to inter change or exchange their position with one another. Such exercise of trans-position does not Effect the pleadings, complexion, character or nature of the suit. Foundation of the controversy remains the same.
Examining the amended plaint, as filed by the defendants Nos. 3 to 7, transposing themselves as plaintiffs Nos. 1 to 5, what I found was that the original plaintiff Haji Ahmed has been dropped, apparently for the reason that he had no cause surviving against any of the parties but, his rights and interest in the suit property were assumed and acquired by the defendant No. 2 who undertook to purchase the property for the stated consideration. In amended plaint, pleading in suit for Specific Performance are no more there, instead entirely new facts are pleaded, relief is directed against defendant No. 2 only. Complexion, Charter and nature of the suit of Specific Performance and Injunction has been changed to that of mandatory injunction seeking implementation, of orders passed in suit. Had there been any claim suit in respect of administration, partition and distribution of the estate of deceased pending inter se the parties then of course transposition of some of the defendants as plaintiff in the matter proposed by Mr. Yousuf Moulvt, could have been possible.
15. At the very outset, there is no order for the transposition of the defendants Nos. 3 to 7 as plaintiff.
Contention of Mr. Yousuf Moulvi, that on 3.9.2001 when Court grafted two weeks further time "to file amended plaint" it in fact allowed transposition of parties. Such contention cannot be sustained for the reason firstly there is no earlier direction of filing amended plaint or order for transposition of parties. Secondly, even, if it is, presumed that by granting time to file amended plaint, transposition of parties was allowed, then there is nothing on record, whereby, transposed parties were allowed to amend the pleadings to an extent that entire complexion nature and character of suit is changed. (for reference see Malik Mumtaz Ali v. Pakistan through Secretary, Refugees and works, Government of Pakistan, Rawalpindi and 3 others, PLD 1971 Lahore 395).
16. Through amended plaint, in fact, the defendants Nos. 3 to 7, are seeking execution of orders dated 15.3.2001 and 25.3.2001 reproduced above. Execution of an order passed in suit can be obtained by resort to provision of Section 36, CPC and not by transposition of parties.
17. For the foregoing discussion objections raised by defendants Nos. 2 and 8 are sustained application CMA No. 8937/2001 is allowed. Plaint filed by defendants Nos. 3 to 7 transposing themselves as plaintiff filed on 19.9.2001 is rejected.
18. In view of the discussion made above, since it has been held by me, that transposition of parties can be ordered by the Court both, on application on any party or suo motu, in case where Court is satisfied that any party to a proceeding has stepped into the shoe of another or interest of any party to the proceedings has either been acquired, transferred, assumed by way of assignment, devolution, transfer, in any lawful manner only then transposition of such party could be ordered to, avoid multiplicity of the proceedings and to cut short the litigation provided nature, character and complexion of suit is not changed. It is already held that, the defendants Nos. 3 to 7 have not acquired any rights or interest as a vendee in the suit property that were available to Haji Ahmed the original plaintiff/vendee. From the orders dated 15.5.2001 and 21.5.2001 as reproduced above it is evident and clear that rights and interest as vendee of the suit property were assumed, and acquired by the defendant No. 2 who in fact, while refunding the earnest money to the original plaintiff Haji Ahmed undertook to buy the subject property either by himself or through his nominees. By doing so in fact he had stepped into the shoes of the original vendee/plaintiff Haji Ahmed, which position is not disputed by Mr. Adil Baig, appearing for defendant No. 2, under circumstances, if any person is to be transposed, it is the defendant No. 2 who could be transposed as plaintiff being vendee. By ordering transposition of defendant No. 2 as plaintiff, neither the character, completion nor nature of the suit for specific performance would be changed. Under _circumstances defendant No. 2 is ordered to be transposed as plaintiff in red ink name of original plaintiff Haji Ahmed is also struck off, rest of .the defendants will remain defendants.
19. Through listed application dated 31.10.2001, defendant No. 2 since transposed, as plaintiff has sought further time of one year for compliance of the order; such time was seriously opposed by Mr. Yousuf Moulvi who had brought a buyer who is prepared to pay approximately Rs. One million more than the agreed sale consideration. Mr. Baig submits same buyers had also approached him.
If that be the case, defendant cannot be allowed repeated extension of time. As a last chance three months time is further allowed from to date to the defendant No. 2 since transposed as plaintiff to fulfil the obligations assumed by him vide orders referred to above. It is made clear that in event plaintiffs fails to come forward to perform the assumed obligations as vendee implications and consequence as per order dated 15.512001 would follow, application in terms of above stand disposed of.
20. CMA No. 3127/2000, is directed against the Haji Ahmed, the original plaintiff, who was refunded the earnest money by the defendant, since name of Haji Ahmed, the original plainttff has been ordered to be struck out, application having become infructuous is dismissed.