BHAGWAT PRASAD AND ORS. Vs. KANHAIYA AND OS.

JUDGEMENT

(1.) BY Way of the instant writ petition, The petitioners have beseeched to quash and set aside the orders dated 12th December, 2011 and 25th January, 2012 passed by Civil Judge (Sr.Div.), Bayana, District Bharatpur. Facts of the instant case are that Kanhaiya and one Mahesh, whose name was later on deleted from the array of the plaintiffs, filed a civil suit no. 11/2009 in the Court of Civil Judge (Jr.Div.) Bayana, District Bharatpur, for permanent injunction and mandatory injunction, in respect of the public way, against Omprakash. During the pendency of suit, one application under Order 1 Rule 10 CPC came to be filed wherein the learned Trial Court, having heard both the parties, ordered to implead Ashok Kumar and Ajeet Kumar to be the plaintiffs no. 2 & 3 and further impleaded Bhagwat Prasad, Ramesh Chand, satya Prakash and Omprakash to be the defendants no. 2 & 5, in the array of defendants, with the consent of their Learned Counsel. Thereafter, the petitioners again filed application imploring the Court to transpose them to be the plaintiffs, as Kanhaiya had filed the representative suit with regard to public way and they intended to plead cause of the plaintiffs. The Trial Court having heard both the parties, dismissed the application on the ground that they were impleaded as respondent no. 2 to 5 with the consent of their counsel and there was no occasion to review that order, on the same grounds. Aggrieved with the afore -stated order, the petitioners have invoked extra ordinary jurisdiction under Article 227 of the Constitution by way of filing this petition.

(2.) HAVING heard the Learned Counsel for the petitioners and carefully perused the impugned orders, it is noticed that it is a representative suit which was initially filed by respondent no. 1 -plaintiff Kanhaiya along with one Mahesh, whose name was deleted later on by the Court, vide order dated 22nd April, 2010. From a bare perusal of the impugned orders, it is revealed that all the petitioners were impleaded as party defendants, with the consent of their counsel. Learned counsel for the petitioners contended that they ought to have been transposed as plaintiffs, as they intended to plead cause of the plaintiffs in representative suit with regard to the public way entailed in the suit. It is relevant to record that for pleading the cause of the plaintiff the transposition of the petitioners -defendants no. 2 to 5, as plaintiffs, is not necessarily required as even while remaining the defendants, they can plead the cause of the plaintiffs. The law does not debar them from exercising their right. Apart that, the petitioners were impleaded as a party defendants in the array of the defendants with the consent of their counsel. The Trial Court rightly dismissed the application vide order dated 25th January, 2012 wherein it observed that there was no occasion to transpose them as plaintiffs, as it was decided with the consent of their Learned Counsel alone. I do not find any perversity in the impugned orders. The extra ordinary jurisdiction is not required to be invoked to upset the pure findings of fact. Even if they continue to be the defendants, their right does not get adversely influenced. Hence, the writ petition being devoid of any substance deserves to be dismissed in limine, which stands dismissed accordingly. Consequent upon the dismissal of the writ petition, the stay application does not survive and the same also stands dismissed accordingly.