Full Judgment
R1IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE29H DAY OF JUNE, 2022 BEFORE THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM WRIT PETITION NO.45671 OF2015(GM-CPC) C/W WRIT PETITION NO.45672 OF2015(GM-CPC) IN WP NO.45671/2015 BETWEEN: MR H P SUBBAREDDY S/O H.T.PILLAREDDY, AGED ABOUT43YEARS, R/AT NO.208, NADUBEEDI THIMMAREDDY LAYOUT, HULIMANGALA VILLAGE & POST, JIGANI HOBLI, ANEKAL TALUK, BANGALORE DISTRICT-560 105. ...PETITIONER (BY SRI.NANJUNDARADHYA B G, ADVOCATE) AND:
1. NAGARAJ S/O GURUMURTHY, AGED ABOUT54YEARS2 SMT.SHANTHA W/O LATE MANJUNATHA, AGED ABOUT44YEARS3 SHOBHA D/O LATE MANJUNATHA, AGED ABOUT29YEARS24. MANOHAR S/O LATE MANJUNATHA, AGED ABOUT25YEARS5 GEETHA D/O LATE MANJUNATHA AGED ABOUT27YEARS6 ANNAPPA S/O LATE MANJUNATHA AGED ABOUT23YEARS7 SMT.LAKSHMAMMA W/O LATE KRISHNA, AGED ABOUT51YEARS8 NARASIMHA S/O LATE KRISHNA, AGED ABOUT23YEARS9 AMBI D/O LATE KRISHNA, AGED ABOUT21YEARS10 NANDA D/O LATE KRISHNA, AGED ABOUT20YEARS11 SRINIVASA S/O LATE GURUMURTHY, AGED ABOUT46YEARS12 GOPAL S/O LATE GURUMURTHY, AGED ABOUT43YEARS13 SMT.JAYALAXMI D/O LATE GURUMURTHY, AGED ABOUT55YEARS3SL NO.1 TO13ARE R/AT BANDEPALYA, BEGUR HOBLI, BANGALORE SOUTH TALUK, REPRESENTED BY THEIR GPA HOLDER SRI.GOPAL, S/O LATE GURUMURTHY, AGED ABOUT43YEARS, R/AT BANDEPALYA, BEGUR HOBLI, BANGALORE SOUTH TALUK-562 122.
14. SRI CHINNAPPA S/O VENKATASWAMY, SINCE DEAD BY HIS LRs A). SMT. PADMA D/O LATE CHINNAPPA, AGED ABOUT48YEARS B). SMT. MANJULA, D/O LATE CHINNAPPA, AGED ABOUT46YEARS C). SRI.VENKATASWAMY, S/O LATE CHINNAPPA, AGED ABOUT44YEARS D). SRI.RAJAPPA, S/O LATE CHINNAPPA, AGED ABOUT40YEARS ALL ARE RESIDING AT NO.223 GARVEPALYA (BANDEPALYA) HOSUR MAIN ROAD, BENGALURU-560068.
15. I.V.PILLAIAH S/O PATEL VENKATRAMANAPPA, R/AT ITTANGUR VILLAGE, SARJAPURA HOBLI, BANGALORE SOUTH-562 125. 4
16. M NARAYANAPPA S/O PATEL VENKATRAMANAPPA, R/AT ITTANGUR VILLAGE, SARJAPURA HOBLI, BANGALORE SOUTH-562 125 17. SMT SAROJAMMA W/O THIMMAREDDY, R/AT ARUPPALI VILLAGE, THALI POST, DENKANAKOTE TALUK, DHARMAPURI DIST TAMILNADU18 I M SETTYRAJU SINCE DEAD BY HIS LRs 18A). LIKITH S/O LATE L.M.SETTIRAJU AGED ABOUT32YEARS18). NAVYA D/O LATE L.M.SETTIRAJU AGED ABOUT30YEARS BOTH R/AT NO.223, NO.45, KASTURI NIVASA, 29TH C CROSS, 7TH MAIN, BTM II STAGE, BENGALURU-560076.
19. SRI S MADHASUDAN S/O SRIRAMAREDDY, NO.98,VII CROSS, 8TH MAIN J P NAGARA3D PHASE, BANGALORE-560 078 20. S NAGARATHNA W/O MUNIRAJU, R/AT NO.7/1, 19TH CROSS, 7TH MAIN, N.S PALYA, 5 BTM LAYOUT II STAGE, BANGALORE-560 076 21. P ANURADHA W/O SETTYRAJU, R/AT NO.28, 19TH CROSS, 7TH MAIN, N.S. PALYA, BTM LAYOUT II STAGE, BANGALORE-560076 22. YASHODAMMA W/O PILLAIAH, ITTANGUR VILLAGE, SARJAPURA HOBLI, BANGALORE SOUTH23 R SARASWATHAMMA W/O NARAYANA, ITTANGUR VILLAGE, SARJAPURA HOBLI, ANEKAL TALUK, BANGALORE DIST24 P ARUNA W/O S ANAND, DURGESH ELECTRICALS BESIDES ALLIANCE COLLEGE, N.S PALYA, BTM LAYOUT, II STAGE, BANGALORE25 M ANUSUYAMMA D/O MUNIVENKATAPPA, R/AT NO.28, 19TH CROSS, 7TH MAIN, N.S.PALYA, BTM LAYOUT II STAGE, BANGALORE-560 076 26. B V SURESH S/O N VENKATASWAMY REDDY, AGED ABOUT47YEARS6R/AT DOMMASANDRA VILLAGE, SARJAPURA HOBLI, ANEKAL TALUK BANGALORE DISTRICT27 K SHEKAR RAJU S/O K RAMARAJU, AGED ABOUT45YEARS R/AT NO.5, 1ST CROSS, DEVI NAGAR, BANGALORE-560 005 28. B M AMARESH REDDY S/O MUNIREDDY @ BODAREDDY, R/AT BANAHALLI VILLAGE, ATTIBELE HOBLI, ANEKAL TALUK, BANGALORE-560 099 29. A C CHETAK S/O CHANNABASAPPA, R/AT NO.381, 42ND CROSS, JAYANAGARA, BANGALORE-560 041 30. A C DEEPAK S/O CHANNABASAPPA, R/AT NO.381, 42ND CROSS, JAYANAGARA, BANGALORE-560 041 31. MEENAKSHI V W/O DR. VINOD REDDY, AGED ABOUT30YEARS R/AT NO.40/A, 17TH MAIN, 100 FEET ROAD, 4TH BLOCK, KORAMANGALA, BANGALORE-560 034 32. M/S TGS CONSTRUCTION PVT. LTD., HAVING ITS OFFICE AT L-142, GROUND FLOOR, 5TH AVENUE, 5TH MAIN ROAD, 6TH SECTOR, HSR LAYOUT, BENGALURU-560102. 7 REPRESENTED BY ITS MANAGING DIRECTOR DR.MANDEEP KAUR …RESPONDENTS (BY SRI.SANJAY KRISHNA, ADVOCATE FOR R18, R20, R21, R24 & R25; SRI.G.V.SHASHI KUMAR, ADVOCATE FOR INDO LEGAL INC FOR R31; R2 TO R17, R19, R23, R26 & R28 ARE SERVED AND UNREPRESENTED; SRI.D.RAGHU PRAKASH BABU, ADVOCATE FOR R29 & R30; SMT.POOJA NAGORI, ADVOCATE FOR R18(A&B); V/O DTD:
05. 07/2016 NOTICE TO R1, R15 AND R22 ARE H/S AND PETITION AGAINST R31 STANDS DISMISSED; V/O DTD:
04. 12/2017, R14 COULD NOT BE A NECESSARY PARTY, NO RELIEF IS SOUGHT FOR AGAINST R14; V/O DTD:
25. 07/2019 NOTICE TO R27 THROUGH PAPER PUBLICATION ACCEPTED) THIS WRIT PETITION IS FILED UNDER ARTICLE227OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DT.28.9.2015 PASSED BY THE LEARNED X ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE (CCH26 IN O.S.NO.2221/2005 ON I.A.NO.29 VIDE ANNX-A AND ETC., IN WP NO.45672/2015 BETWEEN: MR H P SUBBAREDDY S/O.H.T.PILLAREDDY, AGED ABOUT43YEARS, RESIDING A NO.208, NADUBEEDI THIMMAREDDY LAYOUT, HULIMANGALA VILLAGE & POST, JIGANI HOBLI, ANEKAL TALUK, BANGALORE DISTRICT-560105. ...PETITIONER (BY SRI.NANJUNDARADHYA B G, ADVOCATE) 8 AND:
1. NAGARAJ S/O GURUMURTHY, AGED ABOUT54YEARS2 SMT.SHANTHA W/O LATE MANJUNATHA, AGED ABOUT44YEARS3 SHOBHA D/O LATE MANJUNATHA, AGED ABOUT29YEARS4 MANOHAR S/O LATE MANJUNATHA, AGED ABOUT25YEARS5 GEETHA D/O LATE MANJUNATHA AGED ABOUT27YEARS6 ANNAPPA S/O LATE MANJUNATHA AGED ABOUT23YEARS7 SMT.LAKSHMAMMA W/O LATE KRISHNA, AGED ABOUT51YEARS8 NARASIMHA S/O LATE KRISHNA, AGED ABOUT23YEARS9 AMBI D/O LATE KRISHNA, AGED ABOUT21YEARS910. NANDA D/O LATE KRISHNA, AGED ABOUT20YEARS11 SRINIVASA S/O LATE GURUMURTHY, AGED ABOUT46YEARS12 GOPAL S/O LATE GURUMURTHY, AGED ABOUT43YEARS13 SMT.JAYALAXMI D/O LATE GURUMURTHY, AGED ABOUT55YEARS14 SRI.CHINNAPPA S/O VENKATASWAMY AGED ABOUT56YEARS SL NO.1 TO14ARE R/AT BANDEPALYA, BEGUR HOBLI, BANGALORE SOUTH TALUK, REPRESENTED BY THEIR GPA HOLDER SRI.GOPAL, S/O LATE GURUMURTHY, AGED ABOUT43YEARS, R/AT BANDEPALYA, BEGUR HOBLI, BANGALORE SOUTH TALUK-562 122.
15. I.V.PILLAIAH S/O PATEL VENKATRAMANAPPA, AGED ABOUT65YEARS, R/AT ITTANGUR VILLAGE, SARJAPURA HOBLI, BANGALORE SOUTH-562 125.
16. M NARAYANAPPA S/O PATEL VENKATRAMANAPPA, AGED ABOUT63YEARS10R/AT ITTANGUR VILLAGE, SARJAPURA HOBLI, BANGALORE SOUTH-562 125 17. SMT SAROJAMMA W/O THIMMAREDDY, AGED ABOUT55YEARS R/AT ARUPPALI VILLAGE, THALI POST, DENKANAKOTE TALUK, DHARMAPURI DIST TAMILNADU-635107 18. I M SETTYRAJU SINCE DEAD BY HIS LRs 18A). LIKITH S/O LATE I.M.SETTIRAJU AGED ABOUT32YEARS18). NAVYA D/O LATE I.M.SETTIRAJU AGED ABOUT30YEARS BOTH R/AT NO.223, NO.45, KASTURI NIVASA, 29TH C CROSS, 7TH MAIN, BTM II STAGE, BENGALURU-560076. (AMENDED AS PER ORDER
DATED0306.2022) 19. SRI S MADHASUDAN S/O SRIRAMAREDDY, AGED ABOUT45YEARS NO.98,VII CROSS, 8TH MAIN J P NAGARA3D PHASE, BANGALORE-560 078 20. S NAGARATHNA W/O MUNIRAJU, 11 AGED ABOUT43YEARS R/AT NO.7/1, 19TH CROSS, 7TH MAIN, N.S PALYA, BTM LAYOUT II STAGE, BANGALORE-560 076 21. P ANURADHA W/O SETTYRAJU, AGED ABOUT50YEARS R/AT NO.28, 19TH CROSS, 7TH MAIN, N.S. PALYA, BTM LAYOUT II STAGE, BANGALORE-560076 22. YASHODAMMA W/O PILLAIAH, AGED ABOUT65YEARS ITTANGUR VILLAGE, SARJAPURA HOBLI, BANGALORE SOUTH-562125 23. R SARASWATHAMMA W/O NARAYANA, AGED ABOUT58YEARS ITTANGUR VILLAGE, SARJAPURA HOBLI, ANEKAL TALUK, BANGALORE DIST-562125 24. P ARUNA W/O S ANAND, AGED ABOUT30YEARS DURGESH ELECTRICALS BESIDES ALLIANCE COLLEGE, N.S PALYA, BTM LAYOUT, II STAGE, BANGALORE-560076 25. M ANUSUYAMMA D/O MUNIVENKATAPPA, AGED ABOUT45YEARS R/AT NO.28, 19TH CROSS, 12 7TH MAIN, N.S.PALYA, BTM LAYOUT II STAGE, BANGALORE-560 076 26. B V SURESH S/O N VENKATASWAMY REDDY, AGED ABOUT47YEARS R/AT DOMMASANDRA VILLAGE, SARJAPURA HOBLI, ANEKAL TALUK BANGALORE DISTRICT-562125 27. K SHEKAR RAJU S/O K RAMARAJU, AGED ABOUT45YEARS R/AT NO.5, 1ST CROSS, DEVI NAGAR, BANGALORE-560 005 28. B M AMARESH REDDY S/O MUNIREDDY @ BODAREDDY, AGED ABOUT50YEARS R/AT BANAHALLI VILLAGE, ATTIBELE HOBLI, ANEKAL TALUK, BANGALORE-560 099 29. A C CHETAK S/O CHANNABASAPPA, AGED ABOUT35YEARS R/AT NO.381, 42ND CROSS, JAYANAGARA, BANGALORE-560 041 30. A C DEEPAK S/O CHANNABASAPPA, AGED ABOUT33YEARS R/AT NO.381, 42ND CROSS, JAYANAGARA, BANGALORE-560 041 31. MEENAKSHI V W/O DR. VINOD REDDY, AGED ABOUT30YEARS13R/AT NO.40/A, 17TH MAIN, 100 FEET ROAD, 4TH BLOCK, KORAMANGALA, BANGALORE-560 034 …RESPONDENTS (BY SRI.SANJAY KRISHNA, ADVOCATE FOR R18(A&B), R20, R21, R24 & R25; SRI.G.A.VISHWANATHA REDDY, ADVOCATE FOR R26 & R28; SRI.G.V.SHASHI KUMAR, ADVOCATE FOR INDO LEGAL INC FOR R31; R1 TO R17, R19, R23 ARE SERVED AND UNREPRESENTED; SRI.D.RAGHU PRAKASH BABU, ADVOCATE FOR R29 & R30; V/O DTD:
05. 07/2016 NOTICE TO R15 AND R22 ARE H/S AND PETITION AGAINST R31 STANDS DISMISSED; V/O DTD:
26. 08/2019 SERVICE OF NOTICE TO R27 IS ACCEPTED THROUGH PAPER PUBLICATION) THIS WRIT PETITION IS FILED UNDER ARTICLE227OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DT.28.9.2015 PASSED BY THE LEARNED X ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE IN O.S.NO.2221/2005 ON I.A.NO.32 VIDE ANNX-A. THESE WRIT PETITIONS COMING ON FOR DICTATING ORDER
S THIS DAY, THE COURT MADE THE FOLLOWING: ORDER
The captioned writ petition No.45671/2015 is filed by defendant No.18 assailing the order dated 28.09.2015 passed by the learned Judge on I.A.No.29 filed under Order XXIII Rule 1A read with Order I Rule 14 10 and Section 151 of CPC. The connected writ petition No.45672/2015 is filed questioning the order of the learned Judge passed on I.A.No.32 filed under Order VI Rule 17 of CPC., wherein the defendant Nos.4, 6, 7, 10 and 11 are permitted to amend the written statement.
2. Respondent Nos.1 to 14 instituted a suit in OS.No.3221/2005 seeking relief of declaration to declare that the plaintiffs are the absolute owners of the suit schedule 'A' and 'B' properties. Respondent Nos.1 to 14 have also sought relief of mandatory injunction directing the defendant Nos.5 to 11 to demolish the structure in the suit schedule 'B' property and consequently, sought for delivery of vacant possession. The respondents - plaintiffs have also sought relief of declaration challenging the compromise decree passed in O.S.No.7604/2004 and 15 also sought for perpetual injunction insofar as schedule 'A' property is concerned.
3. Pending suit, the respondent Nos.1 to 14 filed a memo seeking withdrawal of the suit. The said memo was strongly objected by defendant Nos.4, 6, 7, 10 and 11 and it appears that defendant Nos.4, 6, 7, 10 and 11 filed an application in I.A.No.29 seeking transposition while I.A.No.32 was filed seeking amendment of the written statement. The said applications were strongly resisted by the present petitioner - defendant No.18. The learned Judge by common order has allowed the application filed in I.A.No.29, thereby permitting defendant Nos.4, 6, 7, 10 and 11 to get themselves transposed as plaintiffs. Consequently, the amendment application filed in I.A.No.32 is also allowed. 16
4. Before I advert to the facts of the case, it would be necessary for this Court to refer the prayer sought in the plaint. This Court feels necessary to cull out the prayer column sought in the present suit, which reads as under; "Wherefore, the plaintiffs prays that this Honourable Court be pleased to pass judgment and decree against the defendants as under:
1. Declaring that the plaintiffs are absolute owners of suit schedule 'A' and 'B' property.
2. Granting Mandatory Injunction directing defendant Nos.5 to 11 demolish the structures in suit schedule 'B' property and to deliver the vacant possession in favour of plaintiffs.
3. Consequently declaring that the alleged compromise decree in O.S.No.7604 of 2004 is not binding on plaintiffs in respect of suit schedule 'B' property. 17
4. Granting permanent injunction in respect of 'A' schedule property against defendants, their agents, servants or anybody claiming anydody through or under them, in any manner, restraining them from interfering or meddling with plaintiff's peaceful possession and enjoyment of suit schedule property possession and enjoyment of suit schedule property.
5. Granting cost of suit 6. Granting such other relief/s as this Hon'ble Court deems fit to grant in the facts and circumstances of the case in the ends of justice and equity.
5. Defendant Nos.4, 6, 7, 10 and 11 on receipt of summons have contested the proceedings by filing written statement. Defendant Nos.4, 6, 7, 10 and 11 have denied the title of the plaintiff in so far as 1 acre 12 1/2 guntas is concerned. The said defendants claim that the original owners through Power of 18 Attorney Holder have transferred 1 acre 12 1/2 guntas. Based on the rival contentions, the Trial Court has formulated the following issues;
"1. Whether the plaintiffs prove that grant of occupancy right by Tribunal was for entire joint family?.
2. Whether the plaintiffs prove that Gurumurthy and Chinnaga Bhovi had no right to execute GPA and said GPA dated 22.10.1987 is invalid?.
3. Whether the plaintiffs prove that Gurumurthy Bhovi died on 08.06.1997 and that the sale deeds by GPA holders after death of Gurumurthy Bhovi are invalid?.
4. Whether the plaintiffs prove that they are absolute owners schedule 'A' and 'B' properties?.
5. Whether the plaintiffs prove that they are in actual possession of 'A' schedule property?. 19 6. Whether the plaintiffs prove that illegal interference of defendants?.
7. Whether the plaintiffs prove that defendant Nos.5 to 11 have put up illegal structure on 'B' schedule property and they are liable to be demolished?.
8. Whether the plaintiffs prove that compromise decree in O.S.No.7604/2004 is not binding on them?.
9. Whether the 8th defendant proves that he has become owner of item Nos.1 and 2 of counter claim schedule property as claimed by him by virtue of sale deed dated 18.03.1998?.
11. Whether the 8th defendant is entitled for counter claim relief (subject to payment of court fee)?.
12. Whether suit of plaintiffs is suffered from non-joinder of necessary party as contended in para - 33 of written statement of 9th defendant?.
13. What Decree or Order?."
2. 6. Respondent Nos.1 to 14 by filing memo sought for withdrawal of the suit. It is in this background defendant Nos.4, 6, 7, 10 and 11 have sought amendment of the written statement and by way of proposed amendment, they have sought injunction against the present petitioner - defendant No.18, who is a pendente lite purchaser. The learned Judge has permitted the defendants to get themselves transposed as plaintiffs has consequently allowed amendment of the written statement thereby permitting defendant Nos.4, 6, 7, 10 and 11 to seek perpetual injunction against defendant No.18 i.e., the present petitioner herein. These two orders are under challenge.
7. Heard learned counsel appearing for the petitioner, learned counsel appearing for respondents 21 - defendant Nos.4, 6, 7, 10 and 11. Perused the order under challenge.
8. The prayer column sought in the plaint clearly indicates that the plaintiffs have sought relief of declaration to declare that they are the absolute owners of the suit schedule 'A' and 'B' properties and relief of mandatory injunction is sought against defendant Nos.5 to 11. On perusal of the issues, this Court would find that the entire burden was casted on the plaintiffs to establish their title and also to establish as to how they are entitled for mandatory injunction. Now, the original plaintiffs intend to withdraw the suit. Since the plaintiffs have sought for withdrawal of the suit, defendant Nos.4, 6, 7, 10 and 11 against whom the reliefs are sought, now intend to seek transposition. The prayer sought in I.A.No.29 needs to be examined in the light of the principles laid down by the Hon'ble Apex court in the case of 22 R.DHANASUNDARI ALIAS R.RAJESWARI VS. A.N.UMAKANTH AND OTHERS reported in (2020)14 SUPREME COURT CASES1 The Hon'ble Apex Court while examining the scope of under Order 23 Rule 1A and Order 1 Rule 10 of CPC has held that in the event the plaintiffs intend to withdraw the suit or abandon his claim, a proforma defendants where substantial question has to be decided against the co-defendants are entitled to seek their transposition as plaintiffs for determination of such a question against the co-defendants. In the present case on hand, defendant Nos.4, 6, 7, 10 and 11 cannot claim to be proforma defendants. Obviously, they were never sailing with the plaintiffs, in fact, their interest is directly conflict with the plaintiffs interest. It is in this background the plaintiffs have sought relief of declaration and have also sought relief of mandatory injunction against the present defendants, who now 23 have sought transposition in the present suit. It is trite law that the contesting defendants against whom reliefs are sought cannot seek transposition on account of plaintiffs abandoning their claim.
9. In the present case on hand, the contesting defendants intend to seek transposition under Order XXIII Rule 1A of CPC. On perusal of Order 23 Rule 1A of CPC., this Court would find that the Rule 1A is incorporated in Civil Procedure Code to facilitate a proforma defendant, who has identical interest from being denied his right if he rested on the success of the plaintiffs suit and if plaintiffs intend to withdraw the suit, in such cases, a proforma defendant is entitled to seek a transposition as plaintiff so that, he can effectively get adjudication of his right. Therefore, what can be inferred is that the normal consideration for transposition is that interest of a person to be transposed as a plaintiff must be 24 identical to the interest of the plaintiff, who tries to withdraw the suit. The law does not countenance of defendant, who is not a proforma defendant or defendant whose interests is not common to that of a plaintiff to be transposed as a plaintiff to continue the suit. Therefore, what emerges from the above said provision is that before a defendant could invoke Rule 1A, it must be shown that the plaintiff is seeking withdraw or abandoned his claim under Rule 2A. The principle that follows is that there must be identity of interest between the plaintiff and such a defendant who wants to transpose as a plaintiff, it must be a suit where the defendant is entitled to succeed automatically on the success of the plaintiff in the suit. Strangely, in the present case on hand, the plaintiffs have, in fact, sought relief of mandatory injunction against the contesting defendant Nos.4, 6,7, 10 and 11. Therefore, this Court is unable to understand 25 as to how these contesting defendants against whom a relief of mandatory injunction was sought can seek transposition on account of memo filed by the plaintiff seeking withdrawal of the suit. Such a recourse is not available to the present contesting defendants.
10. Therefore, this court is of the view that the very transposition application was not at all maintainable. If on account of withdrawal/ abandonment of claim by the plaintiffs, the present defendant Nos.4, 6, 7, 10 and 11 are apprehending any interference by the present petitioner - defendant No.18, it is a fresh cause of action and therefore, the defendants have to file a separate suit. Admittedly, defendant Nos.4, 6, 7, 10 and 11 have not at all set up any counter claim. Therefore, on account of withdrawal of the suit by the plaintiffs, the Court is not left with any substantial question to be adjudicated against the other defendants. The moment, plaintiffs 26 sought for withdrawal of the suit, nothing remains for consideration, which would invite the courts indulgence to determine the rights of the contesting defendants against whom the reliefs were sought.
11. As held by the Hon'ble Apex Court in the judgments cited supra, it is only a proforma defendants when substantial question to be decided against co-defendants, the defendants are entitled to seek transposition. Such a recourse is not available to the contesting defendants against whom reliefs were sought by the original plaintiff.
12. If these significant details are taken into consideration, then this Court is of the view that the learned Judge erred in allowing the amendment of written statement. By allowing the amendment of written statement, the learned Judge has exceeded its jurisdiction. By way of amendment, the contesting 27 defendants intend to seek perpetual injunction against the present petitioner - defendant No.18. If defendant Nos.4, 6, 7, 10 and 11 feel that their rights are infringed by any action of the petitioner - defendant No.18, then defendant Nos.4, 6, 7, 10 and 11 can seek redrassal of their grievance by filing a separate suit under the garb that there is an interference by the petitioner - defendant No.18. The above said defendants cannot seek transposition. Having regard to their status in the suit, the learned Judge was not justified in permitting the said defendants to get themselves transpose as plaintiffs. The order is palpably erroneous and suffers from serious infirmities. Therefore, the same is not at all sustainable. Hence, I pass the following; ORDER
Both writ petitions are allowed. 28 The impugned orders dated 28.09.2015 passed on I.A.Nos.29 and 32 by the X Additional City Civil and Sessions Judge, Bengaluru (CCH-26) in O.S.No.2221/2005 are set aside. In view of allowing the writ petitions, the impleading application filed in I.A.No.2/2018 in W.P.No.45672/2015 does not survive for consideration and accordingly, dismissed. Sd/- JUDGE NBM