YOGESH KUMAR Vs. SANJAY KUMAR & ORS

JUDGEMENT

(1.) Heard learned counsel for the parties.

(2.) In this writ petition filed under Article 227 of the Constitution of India, the petitioner defendant is challenging the validity of the order dated 2.8.2011 whereby his application filed under Order I Rule 8(5) read with Section 151 C.P.C. was rejected, in which a specific prayer was made by the petitioner that he may be substituted as plaintiff because the original plaintiff Sanjay Kumar real brother of the petitioner is rot pursuing the case with due diligence. The trial Court rejected the application of the petitioner solely on the ground that contention of the petitioner solely on the ground that contention of the petitioner with regard to lethargic attitude of plaintiff is not proved because he is regularly attending the Court and proceedings through his counsel, meaning thereby, the trial Court rejected the application filed by the petitioner solely on the ground that the original plaintiff is attending the Court.

(3.) Learned counsel for the petitioner submits that suit is pending since 2003 and for one or another reason the Court is granted adjournment upon the prayer of original plaintiff and this reason itself is sufficient to rove the fact that the original plaintiff is not cooperating in the proceedings of suit, therefore, being proforma defendant, the petitioner filed an application to proceed in the matter being the plaintiff of the suit but trial Court without considering the important fact that the original plaintiff is not proceeding in the matter with due diligence rejected the application filed by the petitioner, which is totally erroneous and against the spirit of order I Rule 8 (5) of C.P.C., therefore, it is prayed that the order impugned may be quashed and the application filed by the petitioner under Order I Rule 8 (5) read with Section 151 C.P.C. may be allowed.