MAHITOSH SINHA Vs. SHYAMAPADA SINHA

JUDGEMENT

(1.) Defendant No. 5 in T.S. No. 139 of 2002 pending in the Court of learned Civil Judge (Senior Division) 1st Court, Cuttack has filed this revision challenging the order dated 4-8-2005 passed by the trial Court in the said suit rejecting the petition filed by the plaintiff for withdrawal of the suit as well as allowing the application filed by the defendant No. 4 for his transposition to the category of plaintiff.

(2.) So far as the first part of the order regarding dismissal of the application filed by the plaintiff for withdrawal of the suit is concerned, it was fairly contended that the defendant No. 5 cannot challenge the said order and therefore this revision petition is confined to the order dealing with the application filed by the defendant No. 4 under Order 23, Rule 1-A of the Code of Civil Procedure for being transposed to the category of the plaintiff.

(3.) Shri Mukherji, learned Senior Advocate appearing for the petitioner challenging the impugned order submitted that only where there is an affinity or identity of interest between the plaintiff and one or more of the defendants, such defendant can be allowed to be transposed to the category of plaintiff when the plaintiff makes an attempt to withdraw the suit. In this regard learned counsel for the defendant No. 4-opposite party submitted that the plaint as well as the written statement filed before the trial Court would clearly indicate that the interest and identity of the plaintiff and defendants are same and therefore when the plaintiff made attempt to withdraw the suit, the petition filed by the defendant No. 4 to transpose as plaintiff has rightly been allowed by the trial Court.