ANAND KUMAR ARYA Vs. SRI BISHWANATH PODDAR

JUDGEMENT

(1.) The petitioners, who are defendant nos. 3 and 4 in Title (D) Suit No. 98 of 2004, are aggrieved of order dated 24.11.2008 by which application filed by the defendant nos. 1, 2, 5, 6 and 7 under Order 23, Rule 1(A) Civil Procedure Code read with section 151 Civil Procedure Code has been allowed and they have been transposed as plaintiffs in the suit and the original plaintiffs have been arrayed as defendants.

(2.) Mishra for a decree for declaration that the suit property is a public trust and the trustees have acquired no right, title and interest to alienate, convey, transfer and sell the suit properly. In the pending suit an application for temporary injunction was filed on 31.8.2004 and by an order dated 19.1.2005 parties were restrained from alienating the suit property without permission of the Court. Thereafter, an application under Order 23, Rule 1 Civil Procedure Code was filed by the plaintiffs on 10.8.2007 seeking leave of the Court to withdraw the suit. An application for transposing themselves as plaintiffs in the suit was also filed by the defendant nos. 1, 2, 5, 6 and 7 on 18.9.2007. Observing that certain issues against the defendant nos. 3, 4 and 8 are required to be adjudicated in public interest, the trial Judge by an order dated 24.11.2008 has allowed the application under Order 23, Rule 1(A) Civil Procedure Code for transposition of defendant nos. 1, 2, 5, 6 and 7 as the plaintiffs, and the original plaintiffs have been arrayed as defendants in the suit.

(3.) Contending that section 92 Civil Procedure Code is mandatory, for non-compliance of which the suit would fail and therefore the application seeking leave of the Court to withdraw the suit could not have been declined by the trial Judge, Mr. Anil Kumar Sinha, the learned Senior Counsel for the petitioners submits that the defendants who have been transposed as plaintiffs in the suit were also required to seek leave of the Court under section 92 CPC, a mandatory provision which stands waived of by virtue of the impugned order dated 24.11.2008.