IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION CHAMBER CHAMBER CHAMBER SUMMONS NO.1701 OF 2008 SUMMONS NO.1701 OF 2008 SUMMONS NO.1701 OF 2008 inin in APPEAL APPEAL APPEAL NO.483 OF 2007 NO.483 OF 2007 NO.483 OF 2007 inin in SUIT SUIT SUIT NO. 700 OF 1972 NO. 700 OF 1972 NO. 700 OF 1972 Surinder Singh Kohli .. Appellant (Orig.Plaintiff) Vs. The Municipal Corporation of Gr.Bombay ... Respondents (Orig.Defendants) Mr.Shrikant Doijode i.b.M/s Doijode and Associates for Appellant Mr.C.D.Mehta i.b.Dhruv Liladhar & Co for Respondent no.5 Mr.Gaurav Joshi i.b. Mr.Omkar Varange for Respondent no.6 Mr.K.N.Gaikwad for BMC (Respondent no.1 CORAM CORAM CORAM : SMT.RANJANA DESAI AND : SMT.RANJANA DESAI AND : SMT.RANJANA DESAI AND K.K.TATED, K.K.TATED, K.K.TATED, JJ JJ JJ DATED DATED DATED : 18th : 18th : 18th December, 2008 December, 2008 December, 2008 P.C. P.C. P.C. (Per K.K.Tated, J) (Per K.K.Tated, J) (Per K.K.Tated, J) 1. The present Chamber Summons is preferred by respondent no. 6 (Original defendant no.6) for the following reliefs : (a) that this respondent no.6 be permitted to transpose as the Appellant and the present appellant be transposed as respondent in the Memo of appeal in the above matter . (b) that this respondent be permitted and/or the present appellant be directed 2 to carry out consequential amendments as may be necessary as per schedule. (c) that the delay if any in taking out this Chamber Summons be condoned. 2. We have heard learned counsel for respondent no.6. He cited a judgment in the matter of K.K.ABRAHAM K.K.ABRAHAM K.K.ABRAHAM VS JOSEPH VARGHESE reported in AIR VS JOSEPH VARGHESE reported in AIR VS JOSEPH VARGHESE reported in AIR 2003 Kerala page 1 to show that under order 23 to show that under order 23 to show that under order 23 Rule 1 of the Code of Civil Procedure the court can pass an order of transposition of the respondent as appellant. There is no doubt that as per order 23 Rule 1 A of the Code of Civil Procedure the court has the power to pass such order but, subject to the condition that the appellant is not in a position to safeguard the interest of the supporting respondent. In the present case, the respondent no. 6 (original defendant no.6) failed to file his vakalatnama as well as written statement in the suit. Not only that no one prosecuted on his behalf in the suit till disposal. It is pertinent to note that the Power of Attorney was executed by the respondent no. 6 in favour of Mr.Harbans Singh Kohli of M/s Kohli Builders Pvt Ltd. on 6th May 2002 i.e.before passing the judgment and decree by the 3 single Judge in suit No.700 of 1972. It is specifically stated in the power of attorney which is Exhibit A to the affidavit in support of the chamber summons that the power of attorney holder will take appropriate steps to protect the interest of a party in the pending suit. 3. On the basis of the praecipe/application dated 21st November, 2008 preferred by the appellant in the abovementioned appeal for withdrawal of the appeal, we have already passed a detailed order considering the objections raisded by respondent no.6 for allowing to withdraw appeal by the appellant and therefore, it is not necessary to deal in detail in the present Chamber Summons. Once the appeal is withdrawn nothing survives in the present Chamber summons. Therefore, the present Chamber summons is dismissed with no order as to costs. Needless to say that the parties have their remedies in law to take appropriate steps to protect their interest. { K.K.Tated, J } K.K.Tated, J } K.K.Tated, J } { Smt Ranjana Desai, J } Smt Ranjana Desai, J } Smt Ranjana Desai, J }