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2001 DIGILAW 537 (ALL)

SIHASAN RAI v. RAM NARAIN

2001-05-22

SUDHIR NARAIN

body2001
SUDHIR NARAIN, J. ( 1 ) THIS writ petition is directed against the order dated 16-1-1997 passed by the trial Court rejecting the application of the petitioner for transposition as plaintiff and the order of the revisional Court dated 24-1-2001 dismissing the revision against the said order. ( 2 ) BRIEFLY, stated the facts, are that Ram Narain, respondent No. 1 filed suit No. 258 of 1981 for permanent injunction restraining the defendants 1st set for mandatory injunction to remove certain constructions and restraining them from interfering in possession of the plaintiff. In the suit he had impleaded Sheo Sagar and Dev Sagar as defendants 1st set and the defendants Nos. 3 to 12 as defendants 2nd set. The petitioner was impleaded as defendant No. 6 in the suit. The plaintiff did not claim any relief as against the defendants 2nd set. The plaintiff entered into a compromise with the defendants 1st set and the suit was decreed on 9-9-1982 on the basis of the said compromise. ( 3 ) THE petitioner filed an application to set aside the judgment and decree on the ground that he was not served with the notice in the suit. The trial Court rejected the application on 3-9-1983. The petitioner preferred an appeal and the appeal has been allowed on 16-11-1984 but it was made clear that it is set aside as against him but the compromise decree as against defendants Nos. 1 and 2 was not set aside. The appellate Court permitted that the trial shall proceed against the petitioner. ( 4 ) THE petitioner filed an application for his transposition as plaintiff on the ground1 that the interest of the plaintiff and the defendant-petitioner was common but the plaintiff colluded with the defendants 1st set and obtained a decree collusively which, in fact affects his rights. The trial court rejected the application by order dated 16-1-1997. The petitioner preferred a revision, which has been, dismissed by iompugned order dated 24-1-2001. ( 5 ) I have heard Sri Siddhartha Varma, learned counsel for the petitioner who submitted that the defendants are entitled to be transposed as plaintiffs even though the plaintiff has not claimed any relief in the suit against him. The petitioner preferred a revision, which has been, dismissed by iompugned order dated 24-1-2001. ( 5 ) I have heard Sri Siddhartha Varma, learned counsel for the petitioner who submitted that the defendants are entitled to be transposed as plaintiffs even though the plaintiff has not claimed any relief in the suit against him. He has placed reliance upon the decision Bhupendra Narayan Sinha Bahadur v. Rajeswar Prasad Bhakat and others, AIR 1931 Privy Council 162 wherein it has been held that the course of adding pro forma defendants as co-plaintiffs should always be adopted where it is necessary for a complete adjudication upon the questions involved in the suit and to avoid multiplicity of proceedings. ( 6 ) A defendant can be transposed as the plaintiff if the interest of the plaintiff as against the contesting defendant is common but where the plaintiff enters into a compromise with the contesting defendants, the cause of action against the contesting defendants ceases as regards the plaintiff who has filed the suit. If the pro forma defendant has any cause of action independently, it is always open to him to file suit against such defendants, who were impleaded in the suit, but the matter was compromised between the plaintiffs and such defendants. A suit, which has already been decided between the plaintiff and the defendant, cannot be reopened by permitting the pro forma defendant to be impleaded as the plaintiff in the suit. ( 7 ) AS noted above, the plaintiff having entered into compromise with the contesting defendants, the Courts below rightly rejected the application of the petitioner. ( 8 ) IN view of the above, I do not find any merit in the writ petition and it is, accordingly, dismissed. Petition dismissed. .