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2019 DIGILAW 2943 (RAJ)

Suraj Kumari v. Rajendra Vaishnav

2019-12-09

DINESH MEHTA

body2019
JUDGMENT Dinesh Mehta, J. - The present writ petition is directed against the order dated 03.12.2018, passed by the learned Additional District Judge, No.5, Jodhpur Metro (hereinafter referred to as 'the Trial Court'), vide which petitioner's request for transposing her as plaintiff No.2 has been rejected. 2. Facts concisely state, are that plaintiff one Ghanshyam filed a suit for partition of property belonging to his father Basti Ram,while impleading his brother Mangilal and sister Suraj Kumari. 3. In the suit so filed, petitioner's son Rajendra Vaishnav, got himself impleaded as a plaintiff, claiming himself to be his legal representative on the basis of a "Will". For completion of facts, suffice it to mention that another Rajendra Vaishnav, respondent No.1, got himself substituted in place of defendant No.1 claiming himself to be his son, so also on the basis of "Will". 4. When the suit was at the stage of evidence of defendant No.3, the petitioner moved an application dated 26.07.2018 and requested the Trial Court to transpose her as plaintiff No.2 in place of defendant No.2. 5. The Trial Court,vide its order dated 03.12.2018, rejected such request inter alia observing that the application has been filed belatedly. It was also observed that while filing the written statement, the defendant No.2 did not make any such request for transposition and such request came to be made after seven years. The Trial Court also held that in a suit for partition, all the plaintiffs and defendants have equal rights and one defendant can cross-examine other defendant. 6. Mr. Soni, learned counsel for the petitioner, challenging the order impugned, contended that the Trial Court has erred in rejecting petitioner's application for transposition. He argued that if the petitioner is not allowed to be transposed as plaintiff No.2, it would adversely affect her rights inasmuch as in the event of filing an appeal, the plaintiff No.1 and defendant No.2 have to file two separate appeals, though their interest is common. 7. Mr. Dave, learned counsel appearing for the respondent, on the other hand, argued that no prejudice has been caused to the petitioner. He supported the order passed by the Trial Court, inter alia contending that the application has been filed belatedly. 8. While supporting the order impugned, passed by the Trial Court, Mr. 7. Mr. Dave, learned counsel appearing for the respondent, on the other hand, argued that no prejudice has been caused to the petitioner. He supported the order passed by the Trial Court, inter alia contending that the application has been filed belatedly. 8. While supporting the order impugned, passed by the Trial Court, Mr. Dave submitted that in view of the settled position that in case of conflicting interest, one defendant can crossexamine other defendants, his client - defendant No.3, shall have no objection if the petitioner/her counsel cross-examines him. 9. Having heard learned counsel for the parties and upon perusal of the impugned order, this Court is of the firm view that no prejudice has been caused to the petitioner. None of the petitioner's rights are likely to be affected, if the order impugned is sustained. 10. Learned counsel for the petitioner failed to point out any prejudice, which is likely to be caused, if the petitioner is not transposed as plaintiff No.2. 11. Having regard to the fact that the suit in question is a suit for partition, in which all the plaintiffs and defendants are alike, and that defendant No.3 has not showed any objection, if petitioner cross-examines him, this Court is of the view that no interference is warranted under Article 227 of the Constitution of India, being guided by the principles enunciated by Hon'ble the Supreme Court in Shalini Shyam Shetty and Ors. Vs. Rajendra Shankar Patil, (2010) 8 SCC 329 and Surya Dev Rai Vs. Ram Chander Rai and Ors., (2003) 6 SCC 675 . 12. As a result of the discussion foregoing, the writ petition is dismissed. The stay application also stands dismissed. 13. Needless to observe that defendant No.2 shall have her independent right to lead evidence.