1 WP No.3235/11 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3235 of 2011 Dr.Gajanan Shrimandhar Mirje deceased thru LRs Ranjeet Gajanan Mirje ... Petitioner versus Chandrakant Balappanna Mirje and ors. ... Respondents ... Mr. Amit Borkar for the petitioner. CORAM : D.G. KARNIK, J DATED : 27th June 2011 P.C. 1. Leave to amend to substitute page no.34. 2. Dr.Gajanan Mirje filed a suit against respondent nos.1 to 7 for possession of the suit property. During the pendency of the suit, Dr.Gajanan died. On the request of his son Ranjeet, he was brought on record in place of original plaintiff Dr.Gajanan. Subsequently, respondents made an application that Dr.Gajanan had also left behind them a daughter by name Mrs.Rajani Prakash Patrawale and as she was not joined as a party to the suit, it was liable to be dismissed. Petitioner Ranjeet thereafter made an application to the court for joining his sister Mrs.Rajani Patrawale as a party defendant. The application was allowed and Rajani was joined as 2 WP No.3235/11 party defendant no.8 in the suit. Thereafter, Rajani made an application to the court for transposing her from defendant no.8 to co­plaintiff as she was an heir of Dr.Gajanan. By an order dated 12 December 2010, the application was allowed. That order is impugned in the present writ petition. 3. In my view, the writ petition is liable to be rejected for more than one reasons. Firstly, the impugned order was passed on an application made by Rajni for transposing her as a co­plaintiff. As such, Rajani is a necessary party to the writ petition. However, she is not being joined as a party to the writ petition. In her absence, order passed in her favour cannot be set aside and writ petition is liable to be dismissed on this ground alone. Even otherwise, I am satisfied that the impugned order calls for no interference. On death of Dr.Gajanan, his legal representatives were to be substituted in his place as co­plaintiffs. One legal representative cannot be joined as plaintiff and another as defendant without his/her consent. Order 22 does not permit such a course. If it is the contention of the petitioner Ranjeet that he is the only legal representative being a legatee under a Will or otherwise, he need not have joined his sister Rajani as a party in the suit at all, but at his own risk. If he chooses to join her as a party being an heir of Dr.Gajanan, she must be joined as an heir of Gajanan along with him and not as a party defendant. There is no merit in the writ petition which is hereby rejected summarily. (D.G.KARNIK, J)