JUDGMENT : SANJAY KUMAR DWIVEDI, J. Heard Mr. Manjul Prasad, learned counsel for the petitioner and Mr. Shresth Gautam, learned counsel for the respondents. 2. This petition has been filed under Article 227 of the Constitution of India for quashing the order dated 17.04.2023 passed by learned Civil Judge (Sr. Division) V, Ramgarh in Original Suit no. 37/2016 whereby the learned court has refused to accept the plaint filed by transposed plaintiff who was initially impleaded as defendant no.1. 3. Mr. Manjul Prasad, learned counsel for the petitioner submits that by order dated 29.06.2022 the petitioner who was defendant no.1 was transposed as plaintiff. He further submits that the said order of transposition was challenged by respondent no.1 herein by filing C.M.P. No. 1148 of 2023 which was dismissed by order dated 12.07.2024. He further submits that in view of dismissal of the said C.M.P. transposition of the petitioner is not in dispute. He further submits that the Title Suit No. 37 of 2016 was filed by the plaintiff for right, title and interest. He submits that during pendency of the said suit the plaintiff has left for his heavenly abode. He submits that the petitioner was defendant no.1 he was contesting the suit and in view of that after the death of the plaintiff he was transposed plaintiff. In this background he submits that the petition dated 01.11.2022 was filed for substituting the plaint which was rejected by the trial court on wrong reasons. He further submits that the learned court has failed to appreciate that the petitioner has already transposed plaintiff in view of that the said petition was required to be allowed however, the learned court has rejected the same. He relied in the case of “Veerabhadrappa and another Vs. Smt. Gangamma and Another” reported in AIR 2003 Karnataka 348 . By way of relying the said judgment he submits that one transposed plaint can be accepted as has been held in para 15 of the said judgment and in view of that the impugned order is required to be quashed. 4. Per contra, Mr. Shresth Gautam, learned counsel for the respondents submits that there is no illegality in the order of the learned trial court. He submits that so far transposed order is concerned, that has attained finality. 4. Per contra, Mr. Shresth Gautam, learned counsel for the respondents submits that there is no illegality in the order of the learned trial court. He submits that so far transposed order is concerned, that has attained finality. He submits that petition has been filed for substituting the entire plaint which is not permissible under the rule and in view of that the learned court has rightly passed the order. He further elaborates his argument by way of submitting that one can amend the plaint however by way of accepting the fresh plaint entire cause of action cannot be allowed to change and in view of that this petition may kindly be dismissed. 5. In view of above submissions of the learned counsel for the parties, it is admitted fact that the Title Suit no. 37 of 2016 was instituted by one Jaswant Singh who has left for his heavenly abode during pendency of the suit. The petitioner was contesting the said suit and he was made defendant no.1. He has already filed written statement. After the death of the original plaintiff the petitioner was allowed to be transposed plaintiff by order dated 29.06.2022. Thereafter the petition dated 01.11.2022 was filed for accepting the new plaint in place of the plaint already filed by Jaswant Singh who has left for his heavenly abode. 6. The learned trial court has held that there is no law to substitute the plaint entirely which appears to be correct one. It is well settled that on cogent ground one can pray for amendment of the plaint however by way of transposed plaintiff the entire cause of action by way of accepting the new plaint cannot be allowed to be changed. If such a situation is there and fresh cause of action is there, the fresh suit is required to be filed. The reference may be to Order 23 Rule 1A which reads as under: “1A. When transposition of defendants as plaintiffs may be permitted-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.” 7. In view of above provision, it is crystal clear that right of the defendant no.1 who is petitioner has continued the litigation and in view of that he was allowed to be a transposed plaintiff in the said suit. Reference may be made to the case of “Jethiben Vs. Maniben and Another” reported in AIR 1983 Guj 194 wherein para 8 and 10 the Hon’ble Supreme Court has held as under:- “8……………….But one thing cannot be ignored that to be transposed as a plaintiff, the defendant who claims to be transposed must have interest identical with the interest of the plaintiff. 10……………………This provision is added, as stated earlier, in order to facilitate a pro forma defendant who has identical interest from being denied his right if he rested on the success of the plaintiff’s suit and the plaintiff wanted to withdraw the suit………….” 8. Since the present case interest of the petitioner appears to be identical of the plaintiff that is how he was allowed as transposed plaintiff. The case of the respondents is covered in the light of Jethiben(supra). 9. The case relied by the learned counsel for the petitioner in the case of “Veer abhadrappa (supra) is not in dispute. The defendant may transposed as one of the plaintiff in the cases to have a fair trial and party should state the essential material facts so that other party may not be taken by surprise. In the case in hand facts are otherwise as such this judgement is not helping the petitioner. 10. In view of above discussions, the Court finds that there is no illegality in the impugned order dated 17.04.2023 passed in Original Suit no. 37/2016 and accordingly, this petition is dismissed. Pending I.A, if any, stands dismissed. 11. At this stage, Mr. Manjul Prasad, learned counsel for the petitioner submits that liberty of the petitioner for instituting fresh suit may be reserved. 12 . In view of the provision made under the Code of Civil Procedure the petitioner is at liberty to move in accordance with law.