PREM LATA Vs. VEENA SHARMA & 5 OTHERS

JUDGEMENT

(1.) The petitioner, who is defendant no.4 in Original Suit no.168 of 2012 instituted by plaintiff-respondent for partition of the suit property had filed an application purportedly under Order 23, Rule 1A C.P.C. for her transposition as plaintiff. It was alleged that the plaintiff and defendant no.2 in the suit are in collusion with each other and the plaintiff intends to get the suit dismissed.The application has been rejected by the trial court by an order dated 4.2.2015. The trial court has held that in case, the petitioner wants to be a plaintiff in the suit, it is open to her to institute separate suit in that regard after paying the court fee. While taking such view, the court has also held that the defendant no.2 had taken an objection to the effect that the petitioner has no share in the suit property. The order of the trial court is under challenge.

(2.) It is submitted by learned counsel for the petitioner that the trial court had wrongly taken into consideration the objection filed by defendant no.2 to the effect that the petitioner is not having share in the suit property in as much as, even the plaintiff admits the share of the petitioner in the suit property.

(3.) There appears to be some force in the submission made by learned counsel for the petitioner. However, it is noticeable that Order 23, Rule 1A comes into operation only when the plaintiff has withdrawn or abandoned his suit or claim under Rule 1. It is admitted to the petitioner that so far, no such application has been filed by the plaintiff-respondent. In such view of the matter, this Court is of the opinion that the application filed by the petitioner under Order 23, Rule 1A was not maintainable.