jpc wp800711.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO. 8007 OF 2011 Mr.Jagdish Pranvallabh Cholera ... Petitioner Versus 1. Mr. Jitendra Pranvallabh Cholera 2. Smt. LataDalmal Batra 3. Mr. Prakash Dalmal Batra 4. Mr. Ashok Dalmal T Batra 5. Mr . Vasant Pranvallabh Cholera ... Respondents Ms. Sowmya Srikrishna a/w Mr. Mikhail Bhel i/by Sonal Doshi & Co. for the petitioner Ms. Bijal Cholera a/w Mr. C.N. Chavan for respondent No.1. CORAM : GIRISH GODBOLE, J. DATED : 12th OCTOBER, 2011 P.C. : 1. Rule. 2. In view of the fact that controversy is essentially between the petitioner( original plaintiff no.3) and respondent no.1 (original plaintiff No2) in RAE & R Suit No. 267/539 of 1998, service of rule on respondent Nos. 2 to 5 is waived. Rule made returnable forthwith and heard by consent of the advocate for the petitioner and advocate for respondent no.1. jpc wp800711.sxw 2 3. The petitioner (original plaintiff no.3), respondent no.1 (original plaintiff no.2 ) and Respondent no.5 (original plaintiff no.1) have jointly filed a suit for declaration under the provisions of the Bombay Rent Act, 1947 on various grounds. Pending this suit, plaintiff no.3, the petitioner herein, filed an application dated 17th November, 2009 below Exh.38 in his capacity as constituted attorney of plaintiff no.1 and prayed that in view of the inter se dispute between the plaintiff no.1 and plaintiff no.2, plaintiff No. 1 should be transposed as defendant. This application was thus seeking a very limited relief and there was no prayer made for transposing the petitioner/plaintiff no.3 as party defendant. It appears that respondent no.1/plaintiff no.2 raised an issue. According to the respondent no.1, Plaintiff nos. 1 and 3 were acting in concert and therefore, in addition to transposing plaintiff no.1, plaintiff no.3 should also be transposed. No application was filed by the plaintiff no.2 for such relief. 4. By the impugned judgment and order dated 4th May, 2010, the learned Judge of the Court Small Causes (C.R.No.13) has disposed of the application Exh. 38 and apart from transposing Plaintiff No.1 as defendant which was the only prayer in the application, the learned Judge has also directed that plaintiff no.3 should be transposed as jpc wp800711.sxw 3 defendant. Aggrieved by this order, Plaintiff no.3 filed Revision Application No. 259 of 2010 before the Appellate Bench of the Small Causes Court which has been dismissed by the impugned order dated 26th August, 2011. Curiously, while answering point no.1, the learned Judges of the Revisional Court have held that Revision is not maintainable but have, thereafter, proceeded to decide the controversy on merits. Those orders are impugned in this petition. 5. Prima facie, in the absence of any application by any party for transposing plaintiff no.3 as defendant in the suit and in the absence of even a remote indication in the judgment and order of the trial Court as to under what provisions of law, the learned Judge was directing transposition of even Plaintiff no.3 as defendant, the impugned order as was passed by the trial court is unsustainable. So also the learned Judges hearing Revision Application, when came to the conclusion that the Revision is not maintainable, could not have proceeded to make observations on merits. 6. Before me, the learned advocate for respondent no.1 sought to rely upon the provisions or Order 1 Rule 10 (2) of the Code of Civil Procedure 1908 and advanced submissions that that the trial Court jpc wp800711.sxw 4 was justified in passing the impugned order. It is difficult to accept this submission. The entire judgment of the trial Court nowhere discloses application of mind to the controversy involved and does not even remotely indicate that the trial Court was exercising any sou motu powers. In such situation, when the plaintiff no.3 is a plaintiff right from the beginning, against his wish, the plaintiff no.3 could not have been transposed particularly when there was no specific application for that purpose. Before me, both the contesting parties namely petitioner- plaintiff no.3 and respondent no.1-plaintiff no.2 are ad idem that the defendants in the suit must be evicted. 7. Now, the inter se controversy between both of them is evident and since two different advocates are appearing it is for them to adopt appropriate proceedings for transposing the other as defendant and if such application/s is/are made the same shall be decided by the trial Court on its own merit, independently and without being influenced by the order which is impugned. 8. It is needless to state that whoever remains as plaintiff the decree must be for the benefit of all of them unless any other competent forum holds and directs that only one of them can be held jpc wp800711.sxw 5 beneficiary of decree if a decree for eviction is ultimately passed. 9. Hence the following order is passed in the writ petition. i. Rule is made absolute. ii. The judgment and order dated 26th August, 2011 passed by the Division bench of the Court of Small Causes in Revision Application No. 259 of 2010 is quashed and set aside. iii. The impugned judgment and order dated 4th May, 2010 passed by the learned Judge of the Court of Small causes in (CR No.13) below Exh.38 in R.A.E. & R. Suit No. 276/539 of 1998 is partly quashed and set aside, to the extent of transposition of Original Plaintiff no.3 as defendant. Remaining part of the order whereby Respondent no.1 is transposed as defendant is not disturbed. iv. Petitioner and Respondent no.1 will be at liberty to file application for transposition of other party as defendant and if any such application/s is/are filed, the same shall be decided by the Small Causes Court on its own merit without being jpc wp800711.sxw 6 influenced by the earlier judgment and order dated 4th May, 2010 or judgment and order dated 26th August, 2011. v. Parties to bear their own costs. vi. In view of the fact that the impugned order of the trial Court is partly set aside, the amendment which has been carried out by the plaintiff no.2 showing the plaintiff no.3 as defendant will also have to be struck off and consequently the name of plaintiff no.3 will be cancelled from the array of Defendants. (GIRISH GODBOLE, J.)