: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.194 OF 2007 IN SUIT NO.3353 OF 2005 WITH CHAMBER SUMMONS NO.1613 OF 2005 IN SUIT NO.3353 OF 2005 Hiralal S. Thakur & Ors. ....Plaintiffs V/s. Kamladevi M.Bacha & Ors. ....Defendants Ms.Gauri Godse for the Applicant. Mr.R.O. Pathak for the Plaintiff Nos.2-A to 2-F. Mr.Suneel Mogre for Defendant Nos.1 to 3. Mr.Pradip Kadam for Defendant No.5. CORAM : S.J. VAZIFDAR, J. DATED : 4TH FEBRUARY, 2008. P.C. : 1. It will be convenient to dispose of both the Chamber Summons by a common order. 2. In Chamber Summons No.1613 of 2005, Plaintiff No.1 has sought an order transposing Plaintiff Nos.2-A to 2-F as Defendant Nos.6 to 12 in the above suit. In Chamber Summons No.194 of 2007, Plaintiff No.1 has sought the same order namely for transposition and for amendments to the suit. The amendments are directed : 2 : against the heirs of Plaintiff No.2. 3. Plaintiff No.1 and his brother original Plaintiff No.2 had filed a declaratory suit No.641 of 1959 regarding their tenancy rights in respect of the suit premises. The suit was decreed. The decree was confirmed by this Court as well by the Supreme Court. 4. Thereafter, based on and in view of the said decree, Plaintiff No.1 and original Plaintiff No.2 filed the suit in the Bombay City Civil Court being S.C. Suit No.5197 of 1996 against Defendant Nos.1 to 5 for possession. The suit was based on the ground that Defendant Nos.1 to 5 were trespassers in the said premises. During the pendency of this suit, Plaintiff no.2 expired and Defendant Nos.2-A to 2-F were brought on record as his heirs. . Thereafter Defendant Nos.1 to 5 took an objection on the grounds of jurisdiction which was upheld by an order dated 30.4.2005 and the plaint was returned to Plaintiff No.1 for being filed in this Court. 5. Disputes had arisen between Plaintiff No.1 and the heirs of Plaintiff No.2 even before the suit : 3 : was filed in this Court. The heirs of Plaintiff No.2 engaged another set of advocate. It is not permissible for the Plaintiffs to be represented by different advocates under the procedure followed by this Court. 6. As stated above, the reliefs claimed fall under two categories namely for transposing the heirs of Plaintiff No.2 as Defendant Nos.6 to 12 and for amendments. 7. By the proposed amendments, Plaintiff No.1 seeks reliefs also against the heirs of Plaintiff No.2 upon their being transposed. It was submitted that the heirs of Plaintiff No.2 had filed RAD No.542 of 2002 in the Small Causes Court inter-alia for a declaration that they had tenancy rights in the suit property. The suit was dismissed. However, an appeal against the order is pending before the Appeal bench of the Small Causes Court. 8. I am inclined to allow Chamber Summons No.1613 of 2005 for transposition. The order dated 28.8.2006 passed in Chamber Summons No.1613 of 2005 need not detain me as the learned Judge merely granted liberty to Plaintiff No.1 to take out a fresh Chamber : 4 : Summons. The contentions were not decided by the learned Judge. It is pursuant to this order that Plaintiff No.1 has taken out Chamber Summons No.194 of 2007 which, for the reasons I shall shortly state, I am not inclined to allow. 9. It is obvious that in view of the disputes between the Plaintiffs inter-se, it is not possible to prosecute this suit by them as co-plaintiffs. The question is which of the Plaintiffs ought to be transposed. 10. In my view so long as the rights and contentions of Plaintiff Nos.2-A to 2-F are protected, in the facts and circumstances of this case, it is appropriate that they be transposed as the Defendants and not Plaintiff No.1. 11. Firstly, as I have observed earlier, I intend protecting the rights of Plaintiff Nos.2-A to 2-F in the event of any decree being passed in the present suit as well as their right to prosecute this litigation. This is done by making it clear that merely by virtue of their being transposed as the Defendants they will not be denied the right to contend that Defendant Nos.1 to 5 are trespassers and : 5 : to support a decree being passed against them. Further in the event of the Plaintiffs settling this suit with Defendant Nos.1 to 5 or any one or more of them, they shall not do so without the leave of this Court. In the event of the Plaintiffs withdrawing the suit or abandoning the same in any manner, Plaintiff Nos.2-A to 2-F shall be transposed once again as the Plaintiffs in the suit. . Secondly, the decree passed in Declaratory Suit No.641 of 1959 was in favour of Plaintiff No.1 and his brother original Plaintiff No.2. It is appropriate therefore that Plaintiff No.1 remains as the Plaintiff in this suit which is based on/consequent to the said decree. Thirdly, RAD suit filed by Plaintiff Nos.2-A to 2-F has been dismissed by the Small Causes Court. 12. In the circumstances, Chamber Summons No.1613 of 2005 is made absolute in terms of prayer (a) with the above clarification/qualification. 13. This brings me to Chamber Summons No.194 of 2007. . It is not necessary to consider prayer (a) : 6 : thereof which is also for transposition of Plaintiff Nos.2-A to 2-F as Defendant Nos.6 to 12 in view of my having allowed Chamber Summons No.1613 of 2005. 14. I am however not inclined to allow the amendments. These amendments as stated above, are directed against the newly added Defendant Nos.6 to 12. The cause of action against them and the evidence to be adduced against them is different from the cause of action and evidence in respect of defendant Nos.1 to 5. Defendant Nos.1 to 5 ought not to be burdened with the litigation which involves the disputes between Plaintiff No.1 and Defendant Nos.6 to 12. . Further in the event of Defendant Nos.6 to 12 succeeding in RAD suit No.542 of 2002 filed by them ultimately it will lead to confusion regarding the nature of the reliefs to be granted in the present suit. 15. In the circumstances, it is desirable that Plaintiff no.1 files separate proceedings against Defendant Nos.6 to 12 in respect of their alleged rights against them. They are always at liberty to do so. : 7 : 16. With the aforesaid liberty, Chamber Summons No.194 of 2007 is dismissed as regards the prayer for amendment. 17. Both the Chamber Summons are accordingly disposed of.