1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.4824 OF 2006 1 Mohd. Aminoddin s/o Mohd. Nawaz, age: 61 years, Occ: Agril and Retired, R/o Silk Mill Colony, Aurangabad. 2 Malekabegum d/o Mohd. Nawaz (Malekabegum w/o Mohd. Saheb), age: 59 years, Occ: Pensioner, R/o Silk Mill Colony, Near Parvesh Kirana, Aurangabad, through G.P.A. Petitioner No.1. 3 Noorjahanbegum @ Khurshidbegum d/o Mohd. Nawaz (w/o Sayyed Shakil Ahmed), age: 48 years, Occ: Household, R/o Silk Mill Colony, Near Parvesh Kirana, Aurangabad, through its G.P.A. Petitioner No.1. Petitioners Versus 1 Mohd. Ayub s/o Mohd. Nawaz, age: 64 years, Occ: Retired & Agril., R/o House No.239, Block No.11, Labour Colony, Nanded, Tq. And District Nanded. 2 Smt.Iqbal Begum w/o Moinoddin, age: 75 years, Occ: Agril., R/o Babhulgaon, Tq.Basmathnagar, District Hingoli. 3 Mohd. Hassnuddin Mohd. Nawaz, died, through L.Rs.: 3/1 Mehjabin w/o Mohd. Hassnuddin, age: 38 years, Occ: Household, 2 R/o Shree Nagar, Seva Medical, Nanded. 3/2 Mohd. Arsalan s/o Mohd. Hassnuddin, age: 16 years, minor u/g of his mother Mehjabin w/o Mohd. Hassnudin, Occ: Student, R/o as above. 3/3 Iremnosheen s/o Mohd. Hassnuddin, age: 9 years, minor, u/g his mother Mehjabin w/o Mohd. Hassnudin, Occ: Student, R/o as above. 4 Siddikabegum d/o Mohd. Nawaz (Siddikabegum w/o Sayyed Maksud Ali), age: 75 years, Occ: Nil, R/o Asefiya Colony, Near Babasaheb Ambedkar Statute, Aurangabad. 5 Eqbalbegum w/o Mohd. Taheruddin, age: 78 years, Occ: Household, R/o Juna Bazar, Near Ambar Library, Aurangabad. 6 Mohd. Mazhruddin s/o Mohd.Taheruddin, age: 55 years, Occ: Agrill, R/o Juna Bazar, Near Ambar Library, Aurangabad. 7 Mohd. Azaruddin s/o Mohd.Taheruddin, age: 54 years, Occ: Service, R/o Juna Bazar, Near Ambar Library, Aurangabad. 8 Mohd. Athruddin s/o Mohd.Taheruddin, age: 52 years, Occ: Service, R/o Juna Bazar, Near Ambar Library, Aurangabad. 9 Mohd.Jafharuddin s/o Mohd.Taheruddin, age: 50 years, Occ: Service, R/o Juna Bazar, Near Ambar Library, Aurangabad. 3 10 Nasreenarabegum w/o Musuddik Ahmed, age: 38 years, Occ: Service, R/o Juna Bazar, Near Ambar Library, Aurangabad. 11 Shaheenarabegum d/o Mohd.Taheroddin, age: 35 years, Occ: Household, R/o Juna Bazar, Near Post Office, Aurangabad. 12 Parvinarabegum w/o Rafiqoddin, age: 32 years, Occ: Household, R/o Juna Bazar, Aurangabad. 13 Mohd.Mujafaroddin s/o Mohd.Muniroddin (died) 14 Sultanabegum w/o Ejaj Ahmed, age: 45 years, Occ: Service, R/o Budhiline, Aurangabad. 15 Wahid Ahmed s/o Asadullakhan, age: 45 years, Occ: Service, R/o Budhiline, Aurangabad. 16 Badarbegum w/o Shaikh Abbas, age: 42 years, Occ: Household, R/o Budhiline, Aurangabad. 17 Hafij Ahmed s/o Asadullakhan, through his L.Rs.: 17a) Anisabegum w/o Mod.Hafij, age: 40 years, Occ: Household, R/o Budhiline, Aurangabad. 17b) Akbarkha s/o Mohd. Hafij, age: 15 years, Occ: Education, minor, under guardian mother Anisabegum w/o Mohd.Hafij, R/o Budhiline, Aurangabad. 4 17c) Jalal s/o Mohd. Hafij, age: 14 years, Occ: Education, minor under guardian mother Anisabegum w/o Mohd.Hafij, R/o Budhiline, Aurangabad. 18 Farzanabegum w/o Abdul Razaq, age: 41 years, Occ: Service, R/o Kokanwadi, Aurangabad. 19 Rafiq Ahmed s/o Asdullakhan, age: 40 years, Occ: Business, R/o Katkat Darwaza, Aurangabad. 20 Zakiyabegum w/o Sk.Shabbiroddin, age: 39 years, Occ: Service, R/o Nizam Colony, Nanded. 21 Shakil Ahmed s/o Asadullakhan, age: 28 years, Occ: Service, R/o Budhiline, Aurangabad. 22 Sahidbegum w/o Mohd. Afzalbegum, age: 37 years, Occ: Service, R/o Budhiline, Aurangabad. 23 Shabanabegum w/o Maujadalikhan, age: 36 years, Occ: Household, R/o Budhiline, Aurangabad. 24 Matin Ahmed s/o Asadullakhan, age: 34 years, Occ: Service, R/o Budhiline, Aurangabad. 25 Munjaji s/o Shivram Dhore, age: 45 years, Occ: Agril., R/o Mauje Babulgaon, Tq.Vasmatnagar, Dist. Hingoli. Respondents 5 Mr.A.S.Bajaj, advocate for petitioners. Mrs.M.A.Kulkarni, advocate for Respondent No.1. Mr.Uday D.Dalvi, advocate holding for Mr.Mujtaba Gulam Mustafa, advocate for Respondents No.3/1 to 3/3, 5 to 12, 14 to 24. Respondent No.13 died. Respondents No.2 & 25 served. CORAM: R.M.BORDE, J. DATE : 13 th November, 2009. ORAL JUDGMENT: 1 Heard Shri A.S.Bajaj, learned Counsel for petitioners, Mrs.M.A.Kulkarni, learned Counsel for Respondent No.1 and Shri Uday D. Dalvi, learned Counsel holding for Mr.Mujtaba Gulam Mustafa, advocate for Respondents No.3/1 to 3/3, 5 to 12 and 14 to 24. 2 Rule, made returnable forthwith and heard finally by consent of the parties. 3 Respondent No.1 is the original plaintiff who presented suit being Regular Civil Suit No.126/1997 against rest of the Respondents as well as present petitioners. Present petitioners were impleaded as defendants no.3, 5 and 6. Defendant no.2, according to petitioners, is the contesting defendant and disputed property is recorded in her name. It is contended by petitioners that defendant no.1 – Respondent No.2 herein entered into compromise with original plaintiff i.e. Respondent No.1 herein and presented pursis Exhibit-152 seeking withdrawal of the suit. Petitioners contend that in fact permission has been granted for withdrawal of the suit without considering their contentions. However, fact remains that the trial Court permitted withdrawal of the suit in view of the order passed on 31.01.2006. 6 4 Petitioners herein, on 27.02.2006, presented an application for their impleadment as plaintiffs in the suit in view of provisions of Order XXIII Rule 1-A of the Code of Civil Procedure. The grievance of the petitioners is that the trial Court has not decided their application and refused to entertain the application informing the petitioners that the Court has become functious officio. However, it is contended that the trial Court did not pass any order on the application which was presented way back on 27.02.2006. 5 Learned Counsel for petitioners has invited my attention to the provisions of Order XXIII Rule 1-A of the Code of Civil Procedure and contended that the application is required to be considered by the trial Court even after according permission for withdrawal of the suit or in the contingency of abandonment of claim in the suit by the plaintiff. According to petitioners, the trial Court cannot refuse to pass any order on the application on the ground that permission is already accorded for withdrawal of the suit. It is contended that even if suit is permitted to be withdrawn and even order in that regard has been passed, even then application presented under Order XXIII Rule 1-A of the Code of Civil Procedure shall have to be dealt with by the trial Court. Provisions of Rule 1-A Order XXIII of the Code of Civil Procedure reads thus: 1-A When transposition of defendants as plaintiffs may be permitted.- Where a suit is withdrawn or abandoned by a plaintiff under rule 1, and a defendant applies to be transposed as a plaintiff under rule 10 of Order I, the Court shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any 7 of the other defendants. 6 Considering the provisions of Rule 1-A of Order XXIII of the Code of Civil Procedure, the trial Court shall have to consider the application presented by concerned defendants and trial Court cannot refuse to deal with the same. In these circumstances, it is required to be directed to the trial Court to decide the application presented by petitioners herein on 27.02.2006 as expeditiously as possible, preferably within six months from today. The trial Court shall proceed to decide the application after extending opportunity of hearing to all parties concerned. The petitioners and parties present before me shall appear before the trial Court on 1 st December, 2009. 7 In view of the directions noted above, Rule is made absolute accordingly. No order as to costs. (R.M.BORDE) JUDGE ******* adb/wp482406