TEJRAM Vs. RAKESH KUMAR

JUDGEMENT

(1.) HEARD Mr. Nagesh Agarwal, the learned counsel for the petitioner and Mr. Neeraj Garg and Mr. Ramji Srivastava, the learned counsel for the respondents.

(2.) THE plaintiff respondent no.6 filed a suit for injunction praying that the defendant nos.1 to 5 should be restrained from interfering in the joint possession of respondent no.6 and the proforma defendant no.7. It is alleged that during the pendency of the suit, the plaintiff sold his share of the property to defendant nos.1 to 5 and, thereafter, filed an application for withdrawal of the suit. The proforma defendants nos.6 and 7 namely, the petitioners filed an application under Order 23 Rule 1 -A read with Order 1 Rule 10 of the C.P.C. praying that the said defendants may be transposed as plaintiffs and may also be permitted to continue with the suit. The application of the plaintiff was allowed and the suit was dismissed as withdrawn and the application of the petitioners for transposition as plaintiff was rejected. The petitioners, being aggrieved by the said order, has filed the present writ petition.

(3.) A perusal of the aforesaid provisions indicate that the plaintiff may at any time after the institution of the suit could abandon his suit and, for that purpose, an application for leave is required to be filed. The court, upon being satisfied could permit the plaintiff to withdraw the suit or part of the claim with or without liberty to file afresh. Order 23 Rule 1 -A of the C.P.C. was inserted by the Code of Civil Procedure by Amending Act, 1976 wherein the power to withdraw the claim by the plaintiff was curtailed to a certain extent and a liberty was given to the defendant to apply and be transposed as a plaintiff under Order 1 Rule 10 C.P.C. in the event the court considered that the applicant had a substantial question to be decided as against the other defendants.