1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2355 OF 2008 IN S.C.SUIT NO.1609 OF 1990. Smt.Prabha Gangadhar Joshi & ors. : Plaintiffs. Versus Naraindas Karsondas & ors. : Defendants. Mr.Jitendra Pathare i/by Mr.R.V.Govilkar for the Plaintiffs Mr. N.M.Ganguly for the Defendant Nos.4 and 5. Mr.Snehal Shah a/w Prashant Desai i/by Wadia Ghandy & Co. for the Defendant No.3. CORAM : R.M.SAVANT, J DATED : DECEMBER 03, 2008 P.C. 1. The above Notice of Motion is filed by the Defendant Nos.4 and 5 for transposing them as Plaintiff Nos.4 and 5 and prosecuting the above suit along with the Plaintiff Nos.2 and 3. 2 2. The above suit has been filed by the Plaintiffs inter alia for a declaration that the Plaintiffs and the Defendant Nos.4 and 5 have a valid charge on the property in suit viz. Final Plot No.155 of T.P.Scheme No.IV Mahim Area together with the building standing thereon. The said declaration is, therefore, sought in favour of the Defendant Nos.4 and 5. 3. The grounds made out for seeking the said relief of transposition are found in the Affidavit in support of the above Notice of Motion. In the first ground as set out in Paragraph No.3 of the said Affidavit it is contended that the Plaintiffs and the Defendant Nos.4 and 5 are having common cause of action and, therefore, they have not filed any written statement as the same would be mere repetition of the Plaint. The said ground, if considered in the context of the averments made in paragraph 1 of the Plaint, does not stand to scrutiny, as it has been stated by the Plaintiffs that the Defendant Nos.4 and 5, though they are the heirs and representatives of the estate of the deceased, are not on co-operative terms with the Plaintiffs and therefore they are joined as Defendants. 3 4. The next ground is that the Plaintiff Nos.2 and 3 are not taking active interest in prosecuting the suit and that the Plaintiffs' advocate has also become very old of 94 years of age. In my view, that cannot be a ground for transposition of the Defendant Nos.4 and 5 as Plaintiffs. 5. The learned counsel for the Defendant No.3 drew my attention to Order XXIII Rule 1-A of the Code of Civil Procedure which provides for transposition of defendants as plaintiffs. It is submitted by the learned counsel for Defendant No.3, only in the eventualities mentioned in the said Order that the transposition can be permitted viz. Where a suit is withdrawn or abandoned by a plaintiff, and the defendant applies to be transposed as a plaintiff under rule 10 of Order I of the Code of Civil Procedure. Such is not the case in the instant Motion. The Motion proceeds on the basis that the Original Plaintiff Nos.2 and 3 would continue to prosecute the Suit and, therefore, in my view, considering the provisions of Order XXIII Rule 1-A, the reliefs sought for in the above Motion cannot be granted. It is 4 submitted on behalf of the Defendant Nos.4 and 5 that the Plaintiffs do not have objection to the Defendants being transposed. In my view the transposition cannot be permitted on the said ground. 6. In that view of the matter, no reliefs can be granted to the Applicants and the above Notice of Motion is accordingly rejected. [R.M.SAVANT, J]