JUDGMENT 1. - This order will dispose of two applications : (i) application dated April 11, 1984 under O. XXIII, Rule 1 and Section 151 Civil Procedure Code filed on behalf of the appellant and (ii) application dated April 17, 1984 under O. I, Rule 19 and section 151 Civil Procedure Code toad with Section 46 and 49 of the Rajasthan Municipalities Act (No. XXXVIII of 1959) (for short 'the Act' herein) filed on behalf of respondent No. 3 for transposing him as appellant. 2. An election petition under section 36 of the Act was filed by the appellant against the respondents. Respondent No. 1 is the elected member and respondents No. 2 to 4 are defeated candidate and resident No. 5 is Returning Officer Sojat Municipal Elections, which were held on February 19, 1982. After trial, the learned Munsif Sojat by his judgment dated October 23, 1982 dismissed the election petition and held that respondent No. 1 Pokar Ram is a properly elected member of Ward No. 16 of the Municipal Board, Sojat. An appeal was filed by the appellant under section 46 of the Act on November 26, 1982 questioning the correctness of the judgment dated October 29, 1982 of the Muttsif dismissing the election pection. On January 5, 1983 on behalf of the appellant an application was filed praying therein that the appellant may be allowed to withdraw the appeal. Thereafter, an application under Order 1, Rule 10 and section 151 Civil Procedure Code read with Section 46 of the Act was submitted on behalf of respondent No. 3 Hariram, the defeated canditate on January 6, 1983 that he may be transposed as the appellant in place of respondent No. 3. The Court by its order dated January 30, 1983 ordered for the issuance of notice on both the aforesaid applications to respondents No. 2, 4 and 5. However, on February 28, 1933, the appellant moved an application that he does not want to withdraw the appeal but wants to prosecute it further, and, therefore, he may be allowed to withdraw the withdrawal application. That application was contested by respondent No. 1 by filing a reply on various grounds. However, on February 28, 1933, the appellant moved an application that he does not want to withdraw the appeal but wants to prosecute it further, and, therefore, he may be allowed to withdraw the withdrawal application. That application was contested by respondent No. 1 by filing a reply on various grounds. This Court by its order dated April 7, 1983 held that as the appellant has filed an application to withdraw the withdrawal application on February 28, 1983, the appeal cannot be dismissed as withdrawn in pursuance of the withdrawal application dated January 6, 1983. Both the applications dated January 6, 1983 and February 28, 1983 were accordingly, disposed of. 3. However, thereafter on April 11, 1984, another application was filed by the appellant which is also signed by his counsel Shri S. K. Sharma. Advocate stating that the appellant does not want to prosecute this appeal but wants to withdraw the same and, therefore, he may be allowed to withdraw the appeal. On April 17, 1984, another application under Order 1, Rule 10 Civil Procedure Code and section 151 Civil Procedure Code read with sections 46 and 49 of the Act was filed praying that respondent No. 3 may be allowed to be transposed as the appellant in place of respondent No. 3. On behalf of respondent No. 1, a reply was filed on August 23, 1984 supported by the affidavit of respondent No. 1. 4. I have heard Mr. K. C. Samdariya, learned counsel for the appellant, Mr. Rajendra Mehta, learned counsel for respondent No. 1, Mr. B. M. Singhvi, learned counsel for respondent No. 3 and Mr. H. N. Calla, learned Government Advocate for respondent No. 5. 5. I propose to deal with the application filed on behalf of respondent No. 3 Hariram under O. I, 10 Civil Procedure Code on April 17, 1984 first. 6. The principal question involved is whether respondent No. 3, a defeated candidate who has not filed appeal against the dismissal of election petition should be transposed as appellant in appeal when the appellant Ramchandra who has filed the appeal does not want to prosecute the appeal and prays for its withdrawal ? 7. Section 46 of the Act provides for appeals from orders of judge. 7. Section 46 of the Act provides for appeals from orders of judge. 46 (2) of the Act is as follows : X X X X X X Section 49 of the Act makes provisions for withdrawal of election petitions. It reads as under : X X X X X X Section 50 deals with statement of election petitions. According to it, an election petition shall abate only on the death of a sole petitioner or of the survivor of several petitioners and a notice is necessary in terms of sub-section (2) of section 50 of the Act to all the respondents regarding abatement of the petition. Section 51 of the Act is important. It provides for substitution on death of petitioner. It reads as under ; X X X X X Procedure for election petition has been provided in Section 41 of the Act- Sub-section (3) of section 41 of the Act so far as it is"material is as follows : X X X X X 8. The contention of Mr. Bird Mal Singhvi, learned counsel for respondent No. 3 is that in this case there is affinity of interest between the appellant and respondent No. 3 and that though, respondent No. 3 wanted to file appeal, he did not do so as the appellant had preferred the appeal and he was advised that as the appeal has already been filed by the appellant, there is no necessity for filing a separate appeal, for he will have a right to address in the appeal. He submitted that complete adjudication upon the question involved in the appeal and to avoid the multiplicity of proceedings, respondent No. 3 should be transposed as appellant in case of withdrawal of appeal by the sole appellant Ramchandra. In this connection, learned counsel has referred to (1) Bhupendra v. Rajesbwari (AIR 1931 SC 162), (2) Saila Bala v. Nirmala Sunderi (AIR 1958 SC 395), (3) Inder Nath v. Ram Dass (1LR 1969 Delhi 45), (4) Ajita Devi v. Hossonara Begum ( AIR 1977 Cal 59 ), (5) Govinda Iyer v. Kumar (AIR 1980 Mad. 233), 9. In Bhupendra's case (1), the proforma defendants asked that a decree should be passed in favour of the appellant. It was observed therein as follows : X X X X In Sails Bala's case (2), one S. (appellant then on record) dropped the fight with the first respondent. 233), 9. In Bhupendra's case (1), the proforma defendants asked that a decree should be passed in favour of the appellant. It was observed therein as follows : X X X X In Sails Bala's case (2), one S. (appellant then on record) dropped the fight with the first respondent. Their Lordships observed that no embarassment would result in their being on record two appellants with conflicting interests. It was observed as under: X X X X X X X Their Lordships approved (6) Vanjiappa Goundan v. Annamalai Chettiar (AIR 1940 Mad.69). The principle laid down in Saila Bali's (2) is that the Court can, if necessary, take action suo moto either under Order 1, Rule 10 Civil Procedure Code or in its inherent jurisdiction and can transpose an appellant as respondent in the appeal. 10. So far as Inder Nath's case (3) is concerned, it is distinguishable on facts. It may be stated that in that case, respondent No. 5 had submitted an application for transposition prior to the application for withdrawal of the appeal. In these facts, it was observed as follows: X X X X X X X What was held in Ajita Devi's case (4) is that the legal right of the plaintiffs to withdraw the suit is not unconditional or absolute and the Court can only exercise its jurisdiction in favour of the plaintiffs where the interests of the defendants are not adversely affected in any way, if the plaintiffs are allowed to withdraw the suit. It was further observed as follows: X X X X X X X The provisions of O. XX[II, Rule 1A and section 107 Civil Procedure Code were considered in Govinda Iyer's case (5) and it was observed as under: X X X X X X X The principles that can be deduced from the aforesaid decisions relied on by the learned counsel for respondent No. 3 are that under Order 1, Rule 10 Civil Procedure Code for a complete adjudication of the point in controversy, the defendant can be transposed as plaintiff. This can also be done to avoid multiplicity of proceedings. The appellant has a right to withdraw the appeal but in appropriate cases, where the interest of the respondents is going to be adversely affected the respondent/s can also be transposed as appellant/s despite withdrawal of the appeal by the appellant. 11. This can also be done to avoid multiplicity of proceedings. The appellant has a right to withdraw the appeal but in appropriate cases, where the interest of the respondents is going to be adversely affected the respondent/s can also be transposed as appellant/s despite withdrawal of the appeal by the appellant. 11. Before I proceed further, it will be relevant to state that the election petition was filed by the appellant on the ground that respondent No. 1 has withdrawn his candidature on February 8, 1982 and, therefore, he could not contest the election. One of the issues framed was in respect of this point. Pokarram (respondent No. 1) had filed the nomination forms. The nomination paper which he filed as an independent candidate was withdrawn by him by means of Ex. P 6. The question before the Tribunal was whether he has with-drawn his candidature. It was found by the Tribunal that withdrawal of the one nomination form did not amount to the withdrawal of the condidature. After the withdrawal of the nomination paper, list of candidates contesting elections was prepared and the name of the petitioner was there.The election petition was dismissed. Against that, the appeal was filed by the appellant. It is not the case of the withdrawal of the election petition by appellant Ramchandra, who had filed the election petition. There has been adjudication by the Tribunal. As the adjudication has already taken place and after that the appeal has been filed the question of multiplicity of the proceedings does not arise. We have also to take into consideration the nature of the election petition and the nature of the relief which is necessary for its determination. The principles governing withdrawal of the election petitions cannot be made applicable to the withdrawal of the appeals which are filed after the decision of the election petitions. In such matters. the appellant has right to withdraw it. In this connection (7) Bijayananda v. Satrughna Satin ( AIR 1963 SC 1566 ), may usefully be referred to. That was a case under the Representation of the People Act, 1951 (for short the Act of 1951'). The election petition in that case was dismissed on the ground that the petition was not in accordance with the provisions of Section 82 of the Act of 1951. One IS' appealed to the High Court under section 116-A of the Act of 1951. The election petition in that case was dismissed on the ground that the petition was not in accordance with the provisions of Section 82 of the Act of 1951. One IS' appealed to the High Court under section 116-A of the Act of 1951. The appeal was heard and it was fixed for judgment and a day prior to the date fixed for judgment, an application was filed by 'S' for withdrawal of appeal as he did not want to prosecute it further. A contention was raised that he was entitled to withdraw the appeal. He was supported in this by the appellant but the other two respondents objected to the withdrawal and contended that 'S' had no absolute right to withdraw the appeal on the analogy of O. XXIII, Rule 1 (1) of the Civil Procedure Code and that principles analogus to section 109 and 110 of the Act of 1951 applied to an application for withdrawal of an appeal. The High Court held that it must be guided by the principles contained in sections 109 and 110 of the Act of 1951 when considering an application for withdrawal of the appeal before it. As regards, the right of withdrawal their Lordships of the Supreme Court observed as under : X X X X X Order 23, Rule 1A Civil Procedure Code has been which is as follows : X X X X X X It has been inserted to provide for the circumstances where a defendant may be allowed to transpose as a plaintiff where the suit is withdrawn or abandoned by tits plaintiff. According to this, while considering application for transposition under Order 1, Rule 10 Civil Procedure Code due regard has to be given to the question whether the person who wants to be transposed has a substantial question to be decided as against any of the other defendants. In this case, as stated ebove, the Tribunal had found that respondent No. 1 had filed two nomination forms. He withdrew one and thereafter, his name was shown as a candidate for contesting the elecion. It has also been found that there is only the withdrawal of nomination form and not the withdrawal of candidature. In these circumstances, can it be said that there is any substantial question raised by respondent No. 3. He withdrew one and thereafter, his name was shown as a candidate for contesting the elecion. It has also been found that there is only the withdrawal of nomination form and not the withdrawal of candidature. In these circumstances, can it be said that there is any substantial question raised by respondent No. 3. After disposal of the election petition, respondent No. 1 had acquired a valuable right and the appellant Ramchandra only chose to challenge that and when he does not want to prosecute the appeal and prays that it may be dismissed as with-drawn, how can the prayer be declined on the ground that respondent No. 3 who had contested the election petition and had been defeated did not choose to file appeal. Order I, Rule 10 (2) is discretionary. In (8) Santuram Hari v. Trust of India Assurance Co. (AIR 1945 Bombay 11), it was observed as under: X X X X X X X The grounds which have been urged by learned counsel for respondent No. 3 to transpose him as appellant may be good grounds if the election petition is with-drawn but they cannot be availed of as stated in the application under Order 1, Rule 10 read with Section 151 Civil Procedure Code. As stated above, the transposition of respondent No. 3 as appellant is not envisaged in the Act except in the circumstances mentioned in sections 51 and 52 of the Act. There is no provision whatsoever in the Act for transposition of the respondent as appellant. Order 23, Rule 1A Civil Procedure Code is very limited for transposition of the applicant as plaintiff in case there is substantial question to be decided as against any of the defendants. So far as respondent No. 3 is concerned, he has no substantial question against the other respondents inclusive of respondent No. 1. 12. For the reasons mentioned in the application, under Order I, Rule 10 Civil Procedure Code read with section 151 Civil Procedure Code filed by respondent No. 3 on April 17, 1984, he cannot be ordered to be transposed as appellant. 13. The application under O. I. Rule 10 read with section 151 Civil Procedure Code filed by respondent No. 3 on April 17, 1984 is, accordingly, dismissed. 14. As the sole appellant Ramchandra wants to withdraw the appeal, his application has to be allowed. 15. 13. The application under O. I. Rule 10 read with section 151 Civil Procedure Code filed by respondent No. 3 on April 17, 1984 is, accordingly, dismissed. 14. As the sole appellant Ramchandra wants to withdraw the appeal, his application has to be allowed. 15. The result is that the application under Order I, Rule 10 read with section 151, Civil Procedure Code is dismissed and the application under O. XXIII, Rule 1 read with section 151, Civil Procedure Code is allowed.Both these applications are disposed of accordingly. *******