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Madhya Pradesh High Court · body

2015 DIGILAW 848 (MP)

Jagdishram v. Girish Pandey

2015-08-14

ALOK ARADHE

body2015
ORDER : ALOK ARADHE, J. 1. Heard. In this writ petition under Article 227 of the Constitution of India, the petitioner has challenged the validity of the order dated 7-1-2015 by which application filed by the petitioner for his transposition as plaintiff in the suit, has been rejected. 2. Facts giving rise to filing of the writ petition briefly stated are that the respondent No. 3-society filed the suit seeking the relief of cancellation of sale deed executed in favour of respondents No. 1 and 2. Initially, the suit plot was allotted in favour of the father of the plaintiff, however, the sale deed was not executed. Thereupon, the father of the plaintiff raised a dispute under section 64 of the Madhya Pradesh Co-operative Societies Act, 1960. The Deputy Registrar vide order dated 31-10-2007 cancelled the allotment of the plot in question made in favour of respondents No. 1 and 2 and permitted the respondent-society to seek the relief of cancellation of the sale deed from the Civil Court. Being aggrieved, the respondents No. 1 and 2 filed an appeal, which was allowed by the Joint Registrar vide order dated 19-12-2008. The petitioner preferred an appeal before the M.P. State Co-operative Tribunal, which was allowed vide order dated 30-11-2009. In the civil suit which was filed by respondent No. 3-society, the petitioner was not impleaded. The petitioner thereupon filed an application under Order 1, Rule 10 of the Code of Civil Procedure, which was allowed by the trial Court and the petitioner was impleaded as defendant. Thereafter, the case was fixed for recording the plaintiff-society's evidence eight times. However, the respondent No. 3-society did not adduce evidence. The petitioner thereupon filed an application seeking his transposition as plaintiff in the suit. The trial Court vide impugned order dated 7-1-2015 rejected the application preferred by the petitioner on the ground that the plaintiff has not abandoned the claim and the petitioner has the right to file a fresh suit. In the aforesaid factual background, the petitioner has approached this Court. 3. Learned counsel for the petitioner has submitted that intact the suit has been filed for the benefit of the petitioner. It is further submitted that the interest of the petitioner as well as respondent No. 3 in the suit is common and is not conflicting. In the aforesaid factual background, the petitioner has approached this Court. 3. Learned counsel for the petitioner has submitted that intact the suit has been filed for the benefit of the petitioner. It is further submitted that the interest of the petitioner as well as respondent No. 3 in the suit is common and is not conflicting. It is also urged that in substance, the application preferred by the petitioner was under Order 1, Rule 8(5) of the Code of Civil Procedure and the trial Court grossly erred in rejecting the application preferred by the petitioner. On the other hand, learned counsel for respondent No. 2 has submitted that since the plaintiff has neither withdrawn the suit nor has abandoned his claim. Therefore, the trial Court has rightly rejected the application preferred by the petitioner for transposition. 4. I have considered the submissions made by learned counsel for the parties. Admittedly, the suit has been filed by respondent No. 3-society seeking the relief of cancellation of the sale deed and the same is for the benefit of the petitioner. There is no conflict of interest between the petitioner and respondent No. 3-society. No doubt, the petitioner had filed an application under Order 1, Rule 10 read with Order 23, Rule 1(a) of the Civil Procedure Code, but it is trite law that label of an application is not decisive of the matter and its content should be seen. The trial Court ought to have treated the application preferred by the petitioner as one under Order 1, Rule 8(5) of the Civil Procedure Code. Order 1, Rule 8(5) of the Civil Procedure Code reads as under:--- "Where any person suing or defending in any such suit does not proceed with due diligence in the suit or defence, the Court may substitute in his place any other person having the same interest in the suit". In the instant case, despite 8 opportunities being granted to the respondent No. 3-society, did not adduce any evidence. Therefore, it is evident that respondent No. 3 was not prosecuting the proceeding in the suit with due diligence and the trial Court should have treated the application preferred by the petitioner as one under Order 1, Rule 8(5) of the Code of Civil Procedure. In view of the preceding analysis, the impugned order suffers from the error apparent on the face of the record. In view of the preceding analysis, the impugned order suffers from the error apparent on the face of the record. Same cannot be sustained in the eye of law. Accordingly, it is quashed. The application preferred by the petitioner for transposition as plaintiff, is allowed. The trial Court is directed to transpose the petitioner as plaintiff in the suit and thereafter shall decide the suit in accordance with law. Accordingly, the writ petition is allowed. C. C. as per rules.