ABRAHAM Vs. ANTONY MATHEW

JUDGEMENT

(1.) The first defendant in O.S.No.2/00 on the file of the District Court, Thiruvananthapuram is the petitioner herein. He is aggrieved by Ext.P5 order passed by the court below, at the instance of the 4th defendant in that suit, whereby the 4th defendant is transposed as the plaintiff.

(2.) It is submitted by the petitioner that the reason stated in Ext.P3 petition seeking such transposition is that the plaintiff has gone aboard and had executed a Power of Attorney in favour of the 4th defendant and therefore, the 4th defendant may be transposed as the plaintiff. It is submitted by the petitioner that the condition mentioned in Order XXIII Rule 1-A of the Code of Civil Procedure enabling a court to transpose the defendant as the plaintiff is not gone into while passing Ext.P5. The court below was carried away by the fact that the 4th defendant had claimed authorship of the dictionary against the petitioner herein and therefore, he had a joint claim along with the plaintiff in the suit. That cannot be a reason to transpose the 4th defendant as the plaintiff.

(3.) It is true that the suit in question is for injunction and for rendering accounts claiming copy right of N.E.R.C. Dictionary for speakers of Malayalam. It is also submitted that the 4th defendant had claimed authorship of the said dictionary as against the claim of the writ petitioner and ha filed a suit O. S. No. 2/99. But that shall not be a reason for transposing him as the plaintiff in O. S. No. 2/00 merely on the ground that the plaintiff therein had gone abroad and executed a Power of Attorney to conduct the suit. The averment in Ext.P3 petition filed by the 4th defendant reveals that the original plaintiff had executed a Power of Attorney in his favour to conduct the suit. Therefore, the plaintiff in O. S. No. 2/00 even after going abroad, had not abandoned the suit. Order XXIII Rule 1-A of the Code of Civil Procedure reads as follows: