Allowed

Mrs. Shobha Sanjay Chimanpure v. Mr. Ramesh Shankarrao Saykhedkar and Ors.

Bombay HC12 Dec 2012WP/4093/2012

Case brief

AI extract

What is this about?

This order quashed the trial court's rejection of a petitioner's application to transpose herself from an original defendant to a plaintiff in a partition suit, relying on Order I Rule 10(2) CPC and the consent of the original plaintiff.

What did the court decide?

The petitioner's application filed at Exh.No.58 in Spl.Civil Suit No.804 Of 2011 is allowed; the impugned order is quashed; the respondent No.6 must carry out necessary amendment within two weeks.

Mrs. Shobha Sanjay Chimanpure Vs Mr. Ramesh Shankarrao… — Property and Title | Bombay HC (2012)

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GAG

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION.

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Writ Petition No.4093 Of 2012.

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Shobha Sanjay Chimanpure :: Petitioner.

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Versus

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Ramesh Shankar-rao Saykhedkar & Ors. :: Respondents.

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Mr. Arvind Purohit, Advocate for the Petitioner.

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None appeared for the Respondents.

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CORAM :: RANJIT MORE, J. DATED :: 12^th December, 2012.

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P.C. :-

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By the order dated 28^th June, 2012 this Court issued notices to the respondents and made it returnable till 23^rd July, 2012. The parties are put on the notice that the Civil Revision Application may be heard and disposed of finally at the stage of admission. The petitioner was also given liberty to serve the respondents by a private notice.

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2. In pursuance to the liberty, the petitioner served respondent Nos. 1 and 2 by private service. The affidavit of service alongwith acknowledgment of the respondent Nos. 1 and 2 are filed on the record. On 3^rd December, 2012 the learned counsel for the petitioner made a submission that Respondent Nos. 1 and 2 are the only contesting parties and other respondents are not contesting parties. In view of the submission, today present petition is placed for hearing.

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3. The petitioner by filing present Writ Petition is challenging the trial courts order dated 21^st March, 2012, whereby her application filed at Exh.No.58 in Spl.Civil Suit No.804 Of 2011 for transposing her as a plaintiff in the suit, was rejected.

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4. Respondent No.6 is the original plaintiff. Respondent Nos. 1 to 5 are original defendant Nos. 1 to 5 where-as, petitioner is original Deft.No.6. Respondent No.6 filed the Spl.Civil Suit No.804/11 in the Court of the Civil Judge,(Sr.Divn.), Pune for partition and separate possession of the suit property. The Gift Deed dated 10^th May, 2010 executed by respondent No.2 in favour of the respondent No.1 is also challenged. Respondent Nos. 3 to 5 and petitioner are supporting respondent No.6 (Ori.Plff.) in the said suit. They have accordingly filed Written-Statement.

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5. In this suit, the petitioner (Ori.Deft.No.6) filed an application at Exh.No.58 for transposing her in the suit, as a plaintiff. The application was necessitied because of the allegations made by the Defendant No.1 in a reply to the amended plaint of the Respondent No.6 / Ori.Plff. It is case of the petitioner that in this reply, respondent No.1 made allegations against her. Those allegations remains unreplied; as petitioner has already filed her Written-Statement, therefore, she filed an application to transpose her as a plaintiff, in the suit.

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6. The respondent No.6 (Ori.Plff.) by making endorsement on the petitioners application given No Objection to transpose the petitioner as a plaintiff. So far as respondent Nos. 2 to 5 are concerned, they have not even filed Say. The learned trial judge however rejected the application on the ground that, same is not maintainable under the provisions of Order XXIII Rule 1A of “The Code of Civil Procedure,1908”.

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7. Having heard the learned counsel for the petitioner and having considered observations made in the case of Kiran Tandon V/s. Allahabad Development Authority & Ors., reported in (2004) 10 S.C.C. 745 , I find merit in the petition. Respondent No.6 filed suit for partition and separate possession. In a suit for partition, each of the party is the plaintiff. The respondent No.6 (Ori.Plff.) by making an endorsement on the application has given No Objection to petitioner's transposition as a plaintiff. The Hon’ble Apex Court in the case, cited supr a, has made following observations in paragraph No.4

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“It is well settled that the court has power under sub-rule (2) Order I Rule 10 of “The Code of Civil Procedure,1908” 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. “

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8. In the light of the above observations, the impugned order cannot be sustained. Perusal of the observations made in the case cited supra discloses that, a court has power under sub-rule(2) of Order I Rule 10 of the code to transfer a defendant to the category of plaintiff and where the plaintiff agrees, such transposition should be readily made. The impugned order, accordingly is quashed and set aside and petitioners application filed at Exh.No.58 filed in Spl.Civil Suit No.804 Of 2011 is allowed. Respondent No.6 shall carry out necessary amendment within a period of two weeks from the date of receipt of the order.

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(RANJIT MORE, J.)

Mrs. Shobha Sanjay Chimanpure v. Mr. Ramesh Shankarrao Saykhedkar and Ors.

Case brief

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Mrs. Shobha Sanjay Chimanpure v. Mr. Ramesh Shankarrao Saykhedkar and Ors.

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