Subject-matter was heard at length on 4-2-2002 and on 27-2-2002, folly wing. Orders were passed: This case was fixed on 4-2-2002 upon hearing of the parties. The application C.M.A. 8936 of 2001 was allowed and so also C.M.A. No,8937 of 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. C.M.A. No,8936 of 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 filed, the application having served its purpose stands disposed of.
2. C.M.A. No,8987 of 2001 is an application under section 151 read with Order 2, Rule 2, C.P.C, 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 Mrs. Ejaz Mashadi since deceased, succeeded by legal heirs, brought on record as defendants Nos.2 to 8. During course of the proceeding plaintiff, Haji 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 so 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. 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 v. Government of Punjab through Collector, Multan and 2 others (1993 CLC 1327). 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 property 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. Ageela Begum (PLD 1978 Karachi 205). I have heard the learned counsel and perused the record. 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 last 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 up to 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. MirzaAdil 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 up to 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. Originally plaintiff Haji Ahmed in his suit for specific performance had prayed inter alia for specific performance of a "Agreement to Sell" in respect of Property No,173, 64 Britoo 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. 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. 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 if 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 light 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. C. Any other relief which this Hon'ble Court deems fit and necessary.
Transposition of party, in legal parlance means to alter or change the order or position of a party usually opposite from the position earlier held i,e, from plaintiff to defendant or vice versa as the case may be. Power to transpose a party emanate from power to add, implead or strike out a party as conferred on Courts under Rule 10 to Order I, C.P.C. 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 v. Suleman Khan and others PLD 1992 SC 590, Muhammad Qasim Khan and 6 others v. Mst. Mehboob and 6 others 1991 SCM R 515.
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. 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. Z to 7 as plaintiff, which exercise was necessitated under circumstances of case. 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. I to 5 was granted by the Court and that too to seek relief as reproduced above.
Transposition of parties is generally allowed liberally by the Court in order to avoid multiplicity of litigation between the parties to a proceeding and to bring to an end the controversy or lis before the Court. Generally transposition is allowed in legal proceedings, where parties are accountable to each other out of the same or same series of transactions subject-matter of suit, like for instance suit for accounts between partners, suit for administration between the legal heirs, suit between the co-owners/joint owners of the property or where interest of any party in same group becomes hostile inter se and common with the interest of opposing parties or where interest of one party devolves, assumed, assigned or transferred unto another party in the opposite group or otherwise.
Where Court orders 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 interchange or exchange their position with one another. Such verses of transposition does not affect 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 Ahmad 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, character and nature of the suit of specific performance and Injunction has been changed to that of mandatory injunction seeking implementation of orders passed in the 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 Maulvi, could have been possible.
At the very outset, there is no order for the transposition of the defendants Nos. 3 to 7 as plaintiffs.
Contention of Mr. Yousuf Maulvi, that on 3-9-2001 when Court granted two weeks further time "to file amended plaint" it in fact allowed transposition of _parties. Such contention cannot be sustained for the reasons, 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).
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 I provision of section 36, C.P.C. And not by transposition of parties.
For the foregoing, discussion objections raised by defendants Nos.2 and 8 are sustained Application C.M.A.No,8937 of 2001 is allowed. Plaint tiled by said defendants Nos. 3 to 7 transposing themselves as plaintiff filed on 19-9-1991 is rejected.
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 of 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 H proceedings had either been acquired, transferred, assumed b: way of assignment, devolution, transfer in any lawful manner only then transposition of such party could be ordered to, avoid multiplicity of the proceedings 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 right 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 other defendant No,2 who in fact, while refunding the earnest money to original plaintiff Haji Ahmed undertook to buy the subject property either by himself or through his nominee. By doing so in fact he had stepped into the shoes of original vendee/plaintiff. Haji Ahmed, which position is not disputed by Mr. Aqil 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, complexion 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 defendant will remain defendants.
3. 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 fulfill the obligations assumed by him vide orders referred to above. It is made clear that in event plaintiff fails to come forward to perform the assumed obligations as vendee implication and consequence as per order dated 15-5-2001 would follow, application in terms of above stand disposed of.
4. C.M.A. No,3127 of 2000, is directed against Haji Ahmed, the original, plaintiff, who was refunded the earnest money by the defendant, since name of Haji Ahmed, the original plaintiff has been ordered to be struck out, application having become infructuous is dismissed.