LAWS(CAL)-2007-7-73

BIKASH SHARMA Vs. SUDAMA MAJHI

Decided On July 20, 2007
BIKASH SHARMA Appellant
V/S
SUDAMA MAJHI Respondents

JUDGEMENT

(1.) THIS is an application under Article 227 of the Constitution of India preferred against Order No. 9 dated July 24, 2006 passed by Mr. S. A. Ansari, learned Single Judge (Junior Division) at jalpaiguri in Title Suit No. 148/2006.

(2.) BRIEFLY, petitioner's case is that he brought Title Suit No. 148 of 2006 against opposite party Nos. 2 and 3 as defendant Nos. 1 and 2 and opposite party Nos. 4 to 12 as proforma defendant Nos. 3 to 11, for declaration of tile, perpetual injunction and consequential reliefs. On June 20,2006, the petitioner jointly with opposite party Nos. 2 and 3 (proforma defendants there) filed an application for compromise of the suit under Order 23 Rule 3 of the Code of civil Procedure for passing a compromise decree. On the same day, the petitioner also filed another application under order 6 Rule 17 of the Code of civil Procedure for amendment of the plaint and on the other hand, the proforma defendant Nos. 3 to 12 also filed another application under Order 1 rule 10 (2) of the Code of Civil Procedure for their transposition to the category of co-plaintiffs. Subsequently, on July 14, 2006, the present opposite party no. 1, Shri Sudama Majhi filed an application under Order 1 Rule 10 (2) of the Code of Civil Procedure for adding him as a defendant in that suit. The petitioner and the proforma opposite party Nos. 4 to 12 filed written objection against that application of Sri Sudama Majhi. Ultimately, the learned Civil judge (Junior Division) at Jalpaiguri passed order No. 9 dated July 24, 2006 allowing the said application of sri Sudama Majhi adding him as a defendant together with a direction to serve amended copies of summons and plaint to the said added defendant and also the learned Trial Judge rejected the application of proforma defendant nos. 3 to 11 (opposite party Nos. 4 to 12)for their transposition as plaintiffs.

(3.) THE said Order No. 9 dated July 24, 2006 is under challenge in the present revisional application as the exercise of jurisdiction not vested on the learned Trial Judge and claimed that a miscarriage of justice has been done by adding present opposite party No. 1 as a defendant in that suit though he is neither a necessary nor proper party to the suit.