Panchamram Ramnath Pal vs Amaranth Algu Pal
2023 Latest Caselaw 2493 Bom

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                                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                              CIVIL APPELLATE JURISDICTION

                                         CIVIL REVISION APPLICATION NO.92 OF 2021

                           Panchamram Ramnath Pal                           .... Applicants

                                          versus

                           Amarnath Algu Pal & Ors.                         .... Respondents
                                                              .......

                           •       Ms. Kalyani Wagle a/w T. N. Tripathi and Co., Advocate for
                                   Applicants.
                           •       Mr. Vinod Kumar Shukla a/w R. S. Tripathi, Advocate for
                                   Respondent Nos.7 to 9.

                                                      CORAM      : SARANG V. KOTWAL, J.

                                                      DATE       : 15th MARCH, 2023

                           P.C. :

1. Heard Ms. Kalyani Wagle, learned counsel for the

Applicant and Mr. Vinod Kumar Shukla, learned counsel for the

Respondent Nos.7 to 9.

2. The Applicant had challenged the order dated

04/02/2020 passed by Civil Judge Senior Division, below Ex.61

in Special Suit No.52 of 2017. Vide the impugned order, the Digitally signed by MANUSHREE MANUSHREE V

application filed by the Applicant for transposition of himself as V NESARIKAR NESARIKAR Date:

2023.03.17 14:35:43 +0530

the Plaintiff was rejected.

                       Nesarikar
                               2/4                         64-CRA-92-21.odt

3. The Applicant was the Original Defendant No.15 in the

said suit.

4. Learned counsel for the Applicant submitted that the

powers of the Trial Court under Order 23 Rule 1-A are wide

enough and therefore in the interest of justice, the Applicant was

required to be transposed as the plaintiff for continuation of the

suit. She submitted that the withdrawal of the suit by the

Original Plaintiff is causing prejudice to the Applicant. She relied

on the judgment of the Hon'ble Supreme Court in the case of R.

Dhanasundari @ R. Rajeswari Vs. A. N. Umakanth & Ors. as

reported in (2020) 14 Supreme Court Cases 1.

5. Learned counsel for the Respondent Nos.7 to 11

submitted that no substantial question is raised by the Applicant

and therefore the Applicant's application before the Trial Court

was rightly rejected.

6. I have considered these submissions. I have perused

the impugned order as well as the application preferred by the 3/4 64-CRA-92-21.odt

Applicant vide Ex.61. The only ground taken by the Applicant in

that application is that the Applicant has shown right, title and

interest as the co-owner in the said suit land. The Original

Defendant Nos.2 and 3 were carrying out illegal and

unauthorized construction on the suit land and the Original

Defendant Nos.1, 2, and 3 may grab the share of the Applicant if

partition is not decreed. It is further mentioned that the

Applicant herein had substantial question of share and partition

of the suit property to be decided against the other Defendants

and the Plaintiff and for avoiding multiplicity of the proceedings,

the Applicant be permitted to be transposed in that suit.

7. The suit, as mentioned earlier, was filed by the Original

Plaintiffs for declaration that the suit land was in possession of

the Original Plaintiffs, for partition of the Original Plaintiffs'

share. There were other reliefs claimed only against the Original

Defendant Nos.1, 2 and 3. These prayers have nothing to do

with the rights of the present Applicant. No substantial question

as required under Order 23 Rule 1-A of the CPC are mentioned.

The said rule reads thus;

4/4 64-CRA-92-21.odt

"1-A. 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 I, the Court shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants."

8. Learned Trial Judge had observed that the Applicant

herein had not filed his Written Statement in the suit. The suit

was filed on 14/01/2017 and his application below Ex.61 was

filed on 09/10/2019. Quite obviously, it was filed just to prolong

the proceedings. The Applicant had no right to create

impediments in the withdrawal of this suit. Based of these

reasoning the application was rejected.

9. I do not see any infirmity in the reasoning and hence I

do not see any merits in these Civil Revision Application. It is

accordingly dismissed.

(SARANG V. KOTWAL, J.)