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2012 DIGILAW 2268 (RAJ)

Yogesh Kumar v. Sanjay Kumar

2012-12-06

GOPAL KRISHAN VYAS

body2012
JUDGMENT 1. - Heard learned counsel for the parties. 2. In this writ petition filed under Article 227 of the Constitution of India, the petitioner defendant is challenging the validity of the order dated 2.8.2011 whereby his application filed under Order I Rule 8(5) read with Section 151 C.P.C. was rejected, in which a specific prayer was made by the petitioner that he may be substituted as plaintiff because the original plaintiff Sanjay Kumar real brother of the petitioner is rot pursuing the case with due diligence. The trial Court rejected the application of the petitioner solely on the ground that contention of the petitioner solely on the ground that contention of the petitioner with regard to lethargic attitude of plaintiff is not proved because he is regularly attending the Court and proceedings through his counsel, meaning thereby, the trial Court rejected the application filed by the petitioner solely on the ground that the original plaintiff is attending the Court. 3. Learned counsel for the petitioner submits that suit is pending since 2003 and for one or another reason the Court is granted adjournment upon the prayer of original plaintiff and this reason itself is sufficient to rove the fact that the original plaintiff is not cooperating in the proceedings of suit, therefore,, being proforma defendant, the petitioner filed an application to proceed in the matter being the plaintiff of the suit but trial Court without considering the important fact that the original plaintiff is not proceeding in the matter with due diligence rejected the application filed by the petitioner, which is totally erroneous and against the spirit of order I Rule 8 (5) of C.P.C., therefore, it is prayed that the order impugned may be quashed and the application filed by the petitioner under Order I Rule 8 (5) read with Section 151 C.P.C. may be allowed. 4. Per Contra, learned counsel for the respondents submits that the order passed by the trial Court is perfectly correct because it has been passed after taking into consideration entire facts of the case, so also, the important aspect of the matter that the original plaintiff is regularly attending the Court and cooperating in the trial with due diligence, therefore, the order impugned is justified for the reason that it has been passed after taking into consideration all the facts of the case. 5. 5. After hearing the learned counsel for the parties and taking into account the fact that after issuance of notice, the original plaintiff did not appeal before this Court, so also the suit is pending since 2003 and trial court observed in some of the order-sheets that due to illness the plaintiff did not appear before the Court, therefore, in my opinion, there is no harm to implead the petitioner as plaintiff is the suit because there is specific provision in the Civil Procedure Code under Order 1 Rule 8(5) that in the event of not proceeding in the matter with due diligence in the suit filed by the plaintiff, the Court can pass an order to substitute the defendant as plaintiff. 6. In view of above this writ petition is allowed. The order impugned dated 2.8.2011 is hereby quashed and set aside and trial Court is directed to substitute the petitioner defendant as plaintiff in the suit in addition to the original plaintiff-Sanjay Kumar and decide the suit itself within a period of six months from today.Petition allowed. *******