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2015 DIGILAW 3128 (ALL)

Raghunath Prasad Tripathi v. Vindhy Hotel Pvt. Ltd. Shivala Mahanth Mirzapur

2015-10-05

MANOJ KUMAR GUPTA

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JUDGMENT Manoj Kumar Gupta, J. – The first and the second respondents instituted Original Suit No. 1 of 2008 against the petitioner and the third and fourth respondents for permanent prohibitory injunction restraining the defendants from interfering in the possession of the plaintiffs over the suit property shown with letters A, B, C, D in the plaint map or from opening any door in the southern wall of their house, towards the suit property. The title to the suit property was claimed by the plaintiffs on the basis of a sale deed dated 25.2.1982 in favour of the plaintiff no. 1, which is stated to be a company incorporated under the Companies Act and plaintiff no. 2 is stated to be one of its Directors. 2. The suit was contested by the defendants by filing written statement alleging that the sale deed is not in respect of the suit property. 3. During the pendency of the suit, the plaintiff-respondents filed an application 112-Ka seeking to withdraw the suit under Order 23, Rule 1 CPC. The application was opposed by the defendants by filing application 114-Ga in which prayer was made that the defendants be transposed as plaintiffs and plaintiffs as defendants. 4. The application filed by the plaintiffs paper no. 112-Ka was allowed by the trial court and the plaintiffs were permitted to withdraw the suit, without any condition. However, the application filed by the defendants was also allowed and they were permitted to be transposed as plaintiffs and the plaintiffs as defendants. Aggrieved by the said order, plaintiff no. 1 preferred Civil Revision No. 13 of 2015. The revision has been allowed in part by District Judge, Mirzapur, by impugned order dated 13.8.2015 and the order passed by the trial court dated 18.3.2015 has been set aside to the extent it permits transposition of the defendants as plaintiffs. 5. The revisional Court has held that concededly the application filed by the plaintiffs was for withdrawal of the suit under Order 23, Rule 1 CPC, without any condition. Such an application has admittedly been allowed by the trial court. 5. The revisional Court has held that concededly the application filed by the plaintiffs was for withdrawal of the suit under Order 23, Rule 1 CPC, without any condition. Such an application has admittedly been allowed by the trial court. The revisional court has held that under Order 23, Rule 1A 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 1, 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. The revisional court has held that neither in the application filed by the defendants, nor from the pleadings, it could be stated that any substantial question remains to be decided as against any of the other defendants. Consequently, the revisional court held that the part of the order by which trial court has permitted transposition of the defendants as plaintiffs is manifestly erroneous in law 6. Learned counsel for the petitioner could not show as to how any substantial question remains to be decided as against the other defendants. Further, it is noticeable that Order 23, Rule 1A CPC would be attracted only when some of the defendants want to be transposed as plaintiff contending that a substantial question remains to be decided as against the other defendants. However, in a case, where all of the defendants seek to be transposed as plaintiff contending that some issue requires to be decided against the original plaintiff, the provisions of Order 23, Rule 1A CPC would not be attracted. In view of the above, this Court does not find any illegality in the order passed by the revisional court. The petition lacks merit and is dismissed. Petition dismissed.