DEEPAK Vs. ARVIND AND ORS.

JUDGEMENT

(1.) The petitioner/defendant No.24 in O.S.No.274/2006 on the file of the I Additional Senior Civil Judge and CJM, Dharwad is before this Court under Article 227 of the Constitution of India praying to quash the order dated 18.07.2017 passed on I.A. filed under Order 1 Rule 10 of CPC in O.S.No.274/2006.

(2.) The suit was for partition and separate possession and consequential reliefs. The petitioner was arrayed as defendant No.24 in the suit. The plaintiff No.1 was the father of defendant No.24. Plaintiff No.1 father of petitioner/defendant No.24 died on 04.06.2016. Subsequently, the petitioner/defendant No.24 filed an application under Order 1 Rule 10 of CPC praying the Court to transpose him as plaintiff in the suit in place of the plaintiff No.1. In the affidavit accompanying the application, it is stated that he is the son of plaintiff No.1 and he is the legal heir of deceased plaintiff No.1. Further, it is stated that at the time of filing the suit as the petitioner/defendant No.24 was not available to sign the vakalath and case papers, he is arrayed as defendant No.24. Hence, he has sought for transposition of himself as plaintiff No.1. The said application was opposed by filing objection by defendant No.9. In the objection it is contended that there being conflict of interest between the petitioner/defendant No.24 and his father plaintiff No.1, the petitioner/defendant No.24 cannot seek to transpose himself as plaintiff No.1. The plaintiffs' statement in the affidavit itself is sufficient to reject the application of the petitioner. The trial Court under the impugned order rejected the I.A. filed under Order 1 Rule 10 of CPC to transpose the petitioner/defendant No.24 as plaintiff No.1.

(3.) Heard the learned counsel for the petitioner, learned counsel for respondent No.1, Sri.A.M.Gundawade, learned counsel for respondents No.3 to 5, 7 to 9, 11, 13 and 23 to