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Power of Court to grant transposition as plaintiff is very wide


The prayer of defendant Nos. 3 to 6 to be transposed as plaintiffs under Order XXIII, Rule I-A read with Order I, Rule 10 of the Code of Civil Procedure, 1908 (‘C.P.C.’), came to be made and allowed in somewhat peculiar set of facts and circumstances, which could be noticed appeal.

As per Rule 1-A ibid., in the eventuality of plaintiff withdrawing the suit or abandoning his claim, a pro forma defendant, who has a substantial question to be decided against the co-defendant, is entitled to seek his transposition as plaintiff for determination of such a question against the said co-defendant in the suit itself. The very nature of the provisions contained in Rule 1-A ibid. 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 1-A ibid. would be to examine if the plaintiff is seeking to withdraw or to abandon his claim under Rule 1 of Order XXII and the defendant seeking the transposition is having an interest in the subject –matter of the suit and thereby, a substantial question to be adjudicated against the order 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.

Hon’ble U.U. Lalit and Dinesh Maheshwari, JJ., have held that the present one is clearly a case answering to all the basics for applicability of Rule 1-A of Order XX111 read with Rule 10 of Order 1, C.P.C. As noticed, the principal cause in the suit is challenge to the sale- deed executed by defendant No.1 in favour of defendant No.2, with the original plaintiff asserting his ownership over the property in question. After the demise of original plaintiff, his sons and daughters came to be joined as plaintiff Nos. 2 to 8 with plaintiff No.5 being the power of attorney holder of all the plaintiffs. After the suit was decreed ex parte, the plaintiff No.5 transferred the property in question to the aforesaid three purchasers, who were joined as plaintiff Nos. 9 to 11 when the ex parte degree was set aside and suit was restored for bi parte hearing. In the given status of parties, even if the plaintiff Nos. 5 and 9 to 11 were later on transposed as defendant Nos. 3 to 6, the suit remained essentially against the defendant Nos. 1 and 2, that is, in challenge to the sale-deed dated 23.3.1985, as executed by the defendant No.1 in favour of the defendant No.2. In regard to this cause, even if plaintiff Nos.5 and 9 to 11 came to be transposed as defendant Nos. 3 to 6, their claim against defendant Nos. 1 and 2 did not come to an end; rather, the interest of the existing plaintiffs as also the defendant Nos. 3 to 6 had been one and the same as against the defendant Nos. 1 and 2.

In the given status of parties and the subject-matter of the suit, when the plaintiffs entered into an agreement with defendant Nos. 1 and 2 and sought permission to withdraw under Order XX111, Rule 1, C.P.C., the right of defendant Nos. 3 to 6 to continue with the litigation on their claim against defendant Nos. 1 and 2 immediately sprang up and they were, obviously, entitle to seek transposition as plaintiffs under Order XX111, Rule 1-A, C.P.C.
R Dhanasundari@ R Rajeshwari v. A N Umakanth, 2019 (196) AIC 13 SC


Three Conditions For Conviction on Corcumstantial Evidence 


These appeals have been preferred by Digamber Vaishnav and Girdhari Vaishnav challenging the judgment and order dated passed by the High Court of Chhattisgarh at Bilaspur, in Criminal Reference affirming the death sentence imposed by the Sessions Judge , Baloda Bazar and dismissing the criminal appeal filed by them challenging the aforesaid judgment and order of the Sessions Judge.

The prosecution story in brief is that the complainant, Badridas Vaishnav lives in village Khapridih . He is a retired teacher. Bhuneshwar was his brother. Both were living in separate mohallas. Bhuneshwar Das had two wives, namely, Shri Bai and Subhadra Bai. From Shri Bai, Bhuneshwar had seven daughters. From Subhadra Bai, he had five daughters and a son. Bhuneshwar Das had expired two years back. Mala, Kondi, Chandni, Nandini, Sharda and son Govinda were residing in the house apart from Shri Bai and Subhadra.

Hon’ble A.K. Sikri, S.A. Nazeer and M.R. Shah, JJ., have held that one of the fundamental principles of criminal jurisprudence is undeniably that the burden of proof squarely rests on the prosecution and that the general burden never shifts. There can be no conviction on the basis of surmises and conjectures or suspicion howsoever grave it may be. Strong suspicion, strong coincidences and grave doubt cannot take the place of legal proof. The onus of the prosecution cannot be discharged by referring to very strong suspicion and existence of highly suspicious factors to inculpate the accused nor falsity of defence could take the place of proof which the prosecution has to establish in order to succeed, though a false plea by the defence at best, be considered as an additional circumstance, if other circumstances unfailingly point to the guilt.

This Court in Jaharlal Das v. State of Orissa, has held that even if the offence is a shocking one, the gravity of offence cannot by itself overweigh as far as legal proof is concerned. In cases depending highly upon the circumstantial evidence, there is always a danger that the conjecture or suspicion may take the place of legal proof. The Court has to be watchful and ensure that the conjecture and suspicion do not take the place of legal proof. The Court must satisfy itself that various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. In order to sustain the conviction on the basis of circumstantial evidence, the following three conditions must be satisfied:

the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; and
the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all humans probability the crime was committed by the accused and none else, and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused.

The prosecution has relied upon the evidence of P.W. 8 to show that the accused and victims were last seen together. It is settled that the circumstance of last seen together cannot by itself form the basis of holding accused guilty of offence. If there is any credible evidence that just before or immediately prior to the death of the victims, they were last seen alongwith the accused at or near about the place of occurrence, the needle of suspicion would certainly point to the accused being the culprits and this would be one of the strong factors or circumstances inculpating them with the alleged crime purported on the victims. However, if the last seen evidence does not inspire the confidence or is not trustworthy, there can be no conviction. To constitute the last seen together factor as an incriminating circumstance, there must be close proximity between the time of seeing and recovery of dead body.
Digambar Vaishnav v. State of Chattisgarh, 2019 (196) AIC 34 SC

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