IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 232 OF 2007 CHAMBER SUMMONS NO. 232 OF 2007 CHAMBER SUMMONS NO. 232 OF 2007 IN IN IN SUIT NO. 832 OF 2006 SUIT NO. 832 OF 2006 SUIT NO. 832 OF 2006 Hanumant M. Desai & another. ... Plaintiff. V/s. Nitesh G. Desai and another. ... Defendants. J.G.Shukla i/b. G.H.Shukla & Co. for the plaintiffs. S.A.Bhagwat for defendant No.1. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. DATED: 16th February 2008. DATED: 16th February 2008. DATED: 16th February 2008. P.C.: P.C.: P.C.: . Heard learned counsel for the applicant and non-applicant. Perused chamber summons. 2. By this chamber summons, the applicant- plaintiff No.1 is seeking to transpose plaintiff No.2 as defendant. 3. The said transposition is opposed by learned counsel appearing for defendant No.1. Defendant No.2 has not filed any reply to oppose this chamber summons. The learned counsel appearing for defendant No.1 submits that the suit in the present form is not maintainable for want of leave to file fresh suit under order 23 rule 1(3)(b) Code of Civil Procedure, 1908 ("C.P.C." for short). He submits that Suit No.1308/1993 was filed by one Mr.Ganpat Mahadeo Desai and Mr.Balu Ganpat Desai. That suit was dismissed in default under order 9 rule 8 of C.P.C. After dismissal of the above suit in default, the present suit is filed by present plaintiff Nos.1 and 2. Plaintiff No.2 was plaintiff in the earlier suit which was dismissed in default, whereas plaintiff No.1- Hanumant M. Desai was defendant in that suit. 4. The present suit is filed by Mr.Hanumant M. Desai with one of the plaintiffs in the earlier suit, namely, Balu Ganpat Desai. Learned counsel for the plaintiff submits that in view of the provision of order 9 rule 8 of C.P.C., fresh suit at the instance of the plaintiffs in Suit No.1308/1993 would not be maintainable. As such present suit is not tenable since one of the plaintiffs is a plaintiff in the present suit with one Hanuant who was defendant in previous suit. He, thus, submits that in order to make the present suit maintainable, the plaintiff No.1 desires to transpose plaintiff No.2 as defendant. The submission is that the suit which is not tenable is being made maintainable by removing defect in the suit by resorting to the mode of transposition. 5. Having heard rival parties, it is not in dispute that the suit at the instance of plaintiff No.1 is very much maintainable. Only presence of plaintiff No.2 as one of the plaintiffs is creating problem in the tenability of the suit. No useful purpose would be served by dismissing the suit on technical ground, if the defect can be cured, the suit can be made maintainable by permitting transposition. The suit is yet to go for trial. Even if present suit is dismissed as not tenable, still fresh suit can always be filed by plaintiff No.1. In the peculiar facts and circumstances, I do not see any reason not to permit transposition of plaintiff No.2 as defendant. In my considered view, I see no impediment in making this chamber summons absolute. 6. In the result, chamber summons is made absolute in terms of prayer clause (a). Amendment to be carried out within two weeks from today. 7. Needless to mention that the observations made in this order being prima facie; they shall not come in way of defendant Nos.1 and 2 at the time of final hearing of the suit. (V.C.DAGA, J.) (V.C.DAGA, J.) (V.C.DAGA, J.)