WP8321_07 v. Mahaling Chalappa Nanadikar & Ors.

Mr. Chavan i/b. Mr. Umesh Mankapure for Petitioner. Mr. S. S. Shah for Respondents. CORAM : B.R. GAVAI, J. MARCH 04, 2011 P. C. : By way of present petition, the petitioner challenges the order dated 14th August 2007 vide which the application filed by the respondent No. 1 for transposing himself as a co-plaintiff came to be allowed. The respondent No. 3 has filed a suit claiming that the gift deed executed by the defendant No. 1 (respondent No. 1 herein) in favour of the present petitioner is illegal, and therefore, null and void. In the said suit, the defendant No. 1 had filed a written statement supporting the claim of the present petitioner. However, subsequently, an application came to be filed for transposing defendant No. 1 as the co-plaintiff. The same is allowed. Hence the present petition.

The learned Counsel for the petitioner submits that by transposing the defendant No. 1 as a co-plaintiff, the entire nature of the suit would be changed. He further submits that the defendant No. 1, in a common written statement filed along with the present petitioner, has MP - -2- WP8321_07 given an admission that the gift deed is valid, and therefore, the transposition which is allowed, would act to the prejudice of the petitioner.

The Apex Court in the case of Kiran Tandon Vs. Allahabad Development Authority and others reported in (2004) 10 SCC page 745 has observed thus:

It is well settled that the court has power under sub- rule (2) Order 1 Rule 10 CPC to transfer a defendant to the category of plaintiffs and where the plaintiff agrees, such transposition should be readily made. This power could be exercised by the High Court in appeal, if necessary, suo motu, to do complete justice between the parties.

It is not in dispute that the plaintiff does not object to the transposition of the defendant No. 1 as a co-plaintiff. In that view of the matter as also in view of the judgment of the Apex Court in Kiran Tandon’s case (supra), no error could be found in the order impugned. Insofar as an apprehension of the petitioner regarding the admission of the defendant No. 1 is concerned, the learned Trial Court, itself, has observed that the present petitioner can confront the defendant No. 1 with the statement made by him in the written statement.

As such, the interests of the present petitioner is squarely safeguarded. No case is made out for interference. Hence rejected.

(B.R. GAVAI, J)