BHAGWAN SHRI RAM Vs. LILABAI

JUDGEMENT

(1.) BY the impugned order the trial Court (III Civil Judge, Class II, Ratlam), has rejected prayer of the applicant -plaintiffs (Nos. 1 to 3) made under Order I R. 2 of the Code of Civil Procedure to transpose plaintiff No. 4 Lilabai, the respondent No. 1 herein, as defendant or in alternative to order separate trials.

(2.) HE dispute pertains to certain agricultural lands. The plaintiffs who claimed title to the land represent two branches of their family. One branch is represented by the applicant -plaintiff Nos. 1 and 2, while the other by applicant No. 3 and respondent No. 1 (the plaintiff Nos. 3 and 4 in the suit). They claimed title to the lands through a common ancestor. During pendency of the suit it was discovered that co -plaintiff Lilabai, the respondent No. 1 had filed a separate suit against the State in respect of one of the Survey Nos. which are in dispute in the present suit. The said suit (No. 84 -A/93) filed by co -plaintiff Lilabai was dismissed and the appeal filed by her against the decree of the trial Court was also dismissed. The other plaintiffs (applicant Nos. 1 to 3) on coming to know about the dismissal of the suit, made an application in the trial Court under Order 1 Rule 10 of CPC praying that plaintiff No. 4 may be transposed as defendant in the suit. This application was dismissed by the trial Court on 23.10.1996. The applicants filed a revision before this Court against the above order which was registered as C.R. No. 1249/96. While the revision was still pending the applicants moved another application before the trial Court under Order I Rule 2 of CPC praying for transposition of plaintiff No. 4 as defendant or in alternative for separate trials. Their revision (C.R. No. 1249/96) was dismissed by this Court as withdrawn with the observation that the trial Court shall consider the matter (the application under Or. 1 R. 2) and pass appropriate orders without feeling fattered by the order impugned in the said revision. The trial Court, however, dismissed the application mainly on the premise that the prayer for transposition of plaintiff No. 4 as defendant has already been considered and rejected by the Court vide its order dated 23.10.1996.

(3.) AS already pointed out the trial Court rejected the application mainly on the ground that similar prayer had already been considered and rejected by the Court vide its order dated 23.10.1996. Sowever, while doing so the Court below not only ignored the observations made by this Court in its order dated 16.1.1996 passed in C.R. No. 1249/96 but also completely shut its eyes to the alternative prayer made for separate trials.