LAWS(JHAR)-2009-3-32

SANJAY KUMAR Vs. NANHKU PRASAD YADAV

Decided On March 18, 2009
SANJAY KUMAR Appellant
V/S
Nanhku Prasad Yadav Respondents

JUDGEMENT

(1.) THE present writ petition has been preferred for quashing of the Order dated 16.01.2007 passed in Title Suit No. 7 of 2003 by the learned Sub Judge Ist, Koderma whereby and whereunder he has been pleased to reject the petition under Order 1 Rule 10(2) of the Code of Civil Procedure filed by the Plaintiffs/petitioners to transpose the plaintiffs/Respondents (14 to 18) as defendants in the suit and thereby has acted illegally and with material irregularity which has caused irreparable loss and injury to the petitioners as also it has occasioned a failure of Justice.

(2.) THE main contention raised by the counsel for the petitioners is as to whether the learned court below was justified in rejecting the petition under Order 1 Rule 10(2) of the Code of Civil Procedure. It has been submitted by the learned Counsel for the petitioners that the co -plaintiffs were not taking any interest in the suit since they were interested parties and has thus, jeopardized the case itself hence, the prayer to transpose such plaintiffs as proforma defendants in the suit so that the petitioners who will be the plaintiffs thereafter can properly contest the suit. The counsel for the petitioners further submits that the learned court below has inherent power under Order 1 Rule 10(2) read with Section 151 of the Code of Civil Procedure to transpose the plaintiff and defendant for protection and enforcement of their rights in the suit for declaration preferred with a prayer for delivery of possession and further to declare the sale deed No. 3977 and 3981 dated 27.6.2001 as illegal and inoperative and the plaintiffs were not bound by the same.

(3.) THE learned Counsel for the petitioners has referred to and relied upon the Judgments reported in , Para (4) and : [1958]1SCR1287 Para (10) to support his contention that the learned court below is empowered and could have passed an order in the interest of justice and thus, the impugned order was clearly illegal and unsustainable in the eyes of law and liable to be quashed.