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Shiv Prasad v. Dwarika Prasad And Others - WRIT - C No. 34193 of 2006 [2006] RD-AH 11069 (6 July 2006)


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Court No. 23

Civil Misc. Writ Petition No. 34193 of 2006

Shiv Prasad Vs. Dwarika Prasad & others


Hon'ble Umeshwar Pandey, J.

Heard the learned counsel for the petitioner.

The petitioner challenges the order of the court below dated 21.3.2006 whereby the three applications of the respondents No. 1 and 2, the plaintiffs in the suit, have been allowed.

Originally there were three plaintiffs in the suit, out whom the petitioner was one of them. The suit was dismissed by the trial court and on appeal while it was pending disposal, the petitioner-plaintiff No. 1 entered into a compromise with the defendants/respondents No. 3 to 6 and got it verified through the court. The appellate court while verifying the compromise of the petitioner did not pass positive order dismissing the appeal of the petitioner and continuing the appeal of respondents No. 1 and 2. However, the occasion arose for the remaining appellants/respondents No. 1 and 2 to move the court to transpose the appellant No.1, the petitioner, as respondent in the appeal which was allowed way back on 28.7.2001. Subsequent thereto the contesting appellants prosecuting the appeal, moved the court to also transposed the petitioner Shiv Prasad as defendant in the suit because he had lost all the interest in the suit and his continuance as plaintiff therein was injurious to the interest of the remaining plaintiffs/respondents No. 1 and 2. The grounds so stated in the amendment application are found to be satisfactory and genuine and as such the appellate court allowed that also.

While challenging the aforesaid order, the learned counsel appearing for the petitioner contends that since the petitioner was the plaintiff, he could not legally be transposed as defendant in the suit as no relief is claimed in the plaint against him. It is also contended that the petitioner, if made a defendant in the suit, the proceedings are required to be clocked back and the court would be obliged under the procedure to issue notice to the petitioner in his capacity as defendants.

I do not agree with the submissions of the learned counsel made above. The plaintiff-petitioner while entering into the compromise with the defendant during the pendency of the appeal had lost all his interest in the appeal as well as in the suit. The suit was already dismissed by the trial court and the petitioner's appeal too was to be dismissed in the light of this compromise. But in so far as the other appellants, respondents No. 1 and 2 are concerned, they had not lost their interest in the suit nor in the appeal. Therefore, the continuance of the petitioner along with the remaining plaintiffs either as appellants in the appeal or as plaintiffs in the suit  would be detrimental to the interest of the respondents No. 1 and 2. In this view of the matter, if the prayer of transposition of the petitioner in the array of the parties as defendant, has been prayed, such prayer is perfectly reasonable and in case the court below has allowed it, no illegality can be found in such orders for an interference in writ jurisdiction. So far as the issuing of the notice to the petitioner as defendant in the suit is concerned, there is absolutely no occasion for the same because he was already represented through counsel in the suit as well s in the appeal. Fresh issuing of notice is not required in this case. The court below has also permitted one of the plaintiffs to verify the plaint and such permission so given cannot be said to be erroneous because in case one of the plaintiffs fails to verify the plaint, he can very well do it subsequently by obtaining permission of the court.

In the light of the aforesaid facts and circumstances, the petition fails and is hereby dismissed.




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