JAGDISHRAM AND ORS. Vs. GIRISH PANDEY AND ORS.

JUDGEMENT

(1.) HEARD . In this writ petition under Article 227 of the Constitution of India, the petitioner has challenged the validity of the order dated 7 -1 -2015 by which application filed by the petitioner for his transposition as plaintiff in the suit, has been rejected.

(2.) FACTS giving rise to filing of the writ petition briefly stated are that the respondent No. 3 -society filed the suit seeking the relief of cancellation of sale deed executed in favour of respondents No. 1 and 2. Initially, the suit plot was allotted in favour of the father of the plaintiff, however, the sale deed was not executed. Thereupon, the father of the plaintiff raised a dispute under section 64 of the Madhya Pradesh Co -operative Societies Act, 1960. The Deputy Registrar vide order dated 31 -10 -2007 cancelled the allotment of the plot in question made in favour of respondents No. 1 and 2 and permitted the respondent -society to seek the relief of cancellation of the sale deed from the Civil Court. Being aggrieved, the respondents No. 1 and 2 filed an appeal, which was allowed by the Joint Registrar vide order dated 19 -12 -2008. The petitioner preferred an appeal before the M.P. State Co -operative Tribunal, which was allowed vide order dated 30 -11 -2009. In the civil suit which was filed by respondent No. 3 -society, the petitioner was not impleaded. The petitioner thereupon filed an application under Order 1, Rule 10 of the Code of Civil Procedure, which was allowed by the trial Court and the petitioner was impleaded as defendant. Thereafter, the case was fixed for recording the plaintiff -society's evidence eight times. However, the respondent No. 3 -society did not adduce evidence. The petitioner thereupon filed an application seeking his transposition as plaintiff in the suit. The trial Court vide impugned order dated 7 -1 -2015 rejected the application preferred by the petitioner on the ground that the plaintiff has not abandoned the claim and the petitioner has the right to file a fresh suit. In the aforesaid factual background, the petitioner has approached this Court.

(3.) I have considered the submissions made by learned counsel for the parties. Admittedly, the suit has been filed by respondent No. 3 -society seeking the relief of cancellation of the sale deed and the same is for the benefit of the petitioner. There is no conflict of interest between the petitioner and respondent No. 3 -society. No doubt, the petitioner had filed an application under Order 1, Rule 10 read with Order 23, Rule 1(a) of the Civil Procedure Code, but it is trite law that label of an application is not decisive of the matter and its content should be seen. The trial Court ought to have treated the application preferred by the petitioner as one under Order 1, Rule 8(5) of the Civil Procedure Code. Order 1, Rule 8(5) of the Civil Procedure Code reads as under: - - -