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2023 DIGILAW 1362 (AP)

Ganni Veeranjaneyulu v. Dattada Sri Datta Sai

2023-10-01

B.KRISHNA MOHAN

body2023
JUDGMENT 1. Heard the learned counsel for the petitioners and none appears for the respondents. 2. The respondent Nos.2, 3, 5 and 6 who are the respondent Nos.1, 2, 4 & 5 in the court below remained exparte. Hence, the issuance of notices to them in this civil revision petition is dispensed with. For the remaining respondents, notices have been sent and they are served but none appears. 3. This revision petition is filed against the order in I.A.No.1705 of 2022 in O.S.No.81 of 2015 on the file of Principal District Judge, West Godavari, Eluru, dtd. 31/1/2023, transposing the 1st defendant in the suit as 2nd plaintiff in the suit by allowing the said I.A. 4. The learned counsel for the petitioners submits that the petitioners herein are the defendant Nos.10 and 11 in the suit filed by the first respondent/plaintiff. The suit is for partition and the plaintiff is challenging the transactions held by the defendant Nos.2 to 4 in favour of the other defendants on the ground of minority by that time. The first defendant remained exparte in the suit. During the pendency of the above suit, the respondent No.1/plaintiff filed the above said I.A before the court below under Order 1 Rule 10 r/w. Order XXIII Rule 1-A of C.P.C, seeking transposition of the 1st defendant as 2nd defendant in the suit. The respondent Nos.2, 4 & 5 in the above said I.A remained exparte and the respondent Nos.3, 6 to 9, 10 and 11 in the above said I.A appeared through their counsel. The respondent No.1 in the court below (in I.A.No.1705/2022 in O.S.No.81/2015) who is the respondent No.2 herein was served with notice in the above said I.A. Though, she remained exparte in the suit, made her appearance in the above said I.A through her counsel and reported no objection for allowing the said I.A. The respondent Nos.3 and 7 before the court below, filed counters and the respondent Nos.6, 8 & 9 in the above said I.A adopted the counter filed by the respondents therein. Similarly, the respondent Nos.10 and 11 in the I.A also filed counter before the court below. 5. Similarly, the respondent Nos.10 and 11 in the I.A also filed counter before the court below. 5. Upon consideration of the matter on merits, the trial court allowed the I.A under Order XXIII Rule 1-A of C.P.C since the first respondent therein/defendant No.1 stated that she has no objection for allowing of the said I.A. But the Order XXIII Rule 1-A of C.P.C contemplates filing of necessary application by the defendant for transposing him/her as plaintiff under Order 1 Rule 10 where a suit is withdrawn or abandoned by plaintiff under rule 1 of Order XXIII Rule 1-A of C.P.C. Admittedly, the defendant No.1 has not filed the above said I.A under Order XXIII Rule 1-A of C.P.C. Even on perusal of the averments of the above said I.A, do not disclose the ingredients of Order 1 Rule 10 of C.P.C and Order 1 Rule 10 (2) C.P.C reads as under: "(2) Court may strike out or add parties. - The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added." 6. It is not the situation as explained by the petitioner/plaintiff in the above said I.A in order to invoke the provision of Order 1 Rule 10 (2) of C.P.C by the court below read with Order XXIII Rule 1-A of C.P.C. When the circumstances do not warrant for invocation of the above said provisions, the trial court ought not to have allowed the I.A. In view of the same, the order in I.A.No.1705 of 2022 in O.S.No.81 of 2015 on the file the Principal District Judge, West Godavari, Eluru, dtd. 31/1/2023, is set aside by allowing the revision petition. 7. Accordingly, the civil revision petition is allowed. No order as to costs. As a sequel, Miscellaneous Petitions pending, if any, shall stand closed.