GOKULANANDA JENA Vs. JADUNATH JENA

JUDGEMENT

(1.) HEARD Shri A.K.Mohapatra, learned counsel for the petitioner. None appears for the opposite parties in spite of service of notice.

(2.) THIS revision application arises out of the order dated 10.8.2001 passed in T.S.No. 58 of 1998 by which the Civil Judge (Senior Division), Jajpur, has allowed the application filed by the plaintiff under Order 23, Rule 1 of the Code of Civil Procedure (C.P.C in short) for withdrawal of the suit and rejected the application filed by defendant No. 2, the present petitioner, under Order 23, Rule 1 -A, C.P.C. to transpose him as plaintiff.

(3.) THE trial Court after hearing both the parties has come to observe that as per the provision of Order 23, Rule 1, C.P.C. the plaintiff at any time after institution of the suit may abandon his suit as against all or any of the defendants and also any part of his claim with the leave of the Court and accordingly allowed the petition for withdrawal of the suit. So far as the application for transposition is concerned, the trial Court held that the Court cannot compel the plaintiff to proceed with the suit and allow the defendant to complain against the plaintiff as because there is no affinity and identity of interest between the plaintiff and defendant No. 2 in the present suit, and rejected the application as there is no sufficient reason to transpose the plaintiff to the category of defendant and vice versa. During the hearing of the aforesaid application, defendant No. 2 placed reliance on the principle decided in Smt. Ajita Debi v. Mustt. Hussenara Begum, AIR 1977 Calcutta 59, in support of his case. The said principle, as quoted in the impugned order, is extracted hereunder: