Proper procedure for transposition of parties under Order 1 Rule 10(6) of the Civil Procedure Code must be followed, including the requirement of an application and notice to the affected parties.

( 1 ) THIS appeal by the fourth defendant is directed against the judgment and decree, dated 19-10-72, passed by the additional Civil Judge, Gulbarga, in r. A. No. 213/1967, on his file, dismissing the appeal and confirming the judgment and decree dated 2-9-1967, passed by the Munsiff, Aland in O. S. No. 23/1/66, on his file, decreeing the suit of the plaintiff against the defendants as prayed for with costs against defendant-4.

( 2 ) AT the outset the learned counsel for the appellant raised an objection that the learned Civil Judge, ordered transposing of second defendant as plaintiff even without an application with a prayer to give such a relief to settle the matter in dispute between the parties. The learned counsel invited my attention to the fact tha|f this court by amendment of O. 1. R. 10 (6) of the Code of Civil Procedure, has framed rule for transposing the parties and that the learned Civil Judge has not followed the procedure contemplated in that rule and as such his order and the decree based on that cannot be sustained. Order 1 Rule 10 (6) of C. P. C. , as incorporated by Karnataka Amendment reads:"the Court may, on the application of any party and after notice to the other parties affected by the application and on such terms and conditions as it may impose transpose a plaintiff to the position of a defendant or subject to the provisions of sub-rule (3), a defendant to the position of a plaintiff. "admittedly, in the instant case, no application was made by second defendant to transpose her as plaintiff and no notice was issued to the parties affected, including fourth defendant. Without such prayer and without following the procedure at the time of writing the judgment, the learned Civil Judge has transposed second defendant as plaintiff and has given the relief in her favour. This procedure is obviously arbitrary and illegal. Without more, therefore the appeal is entitled, to succeed. In the result, the appeal is allowed, the judgment and decree of the first appellate Court are set aside and the matter is remitted to first appellate court with a direction that the first appellate Court shall now follow the procedure as contemplated under O. 1. R. 10 (6) of the C. P. C. and the second defendant if she is so interested is at liberty to make an application to the court to transpose her as plaintiff and the first appellate Court after issuing notice to the parties affected and! hearing them shall proceed to dispose of the appeal in accordance with law. It is also directed further that the first appellate Court shall give opportunity to the concerned parties, if they so desire to adduce additional evidence, in the matter No costs of this appeal.

( 3 ) SEND back the concerned records to the first appellate Court. Parties are directed to be presen't before the first appellate Court on 12-4-1982 to take further instructions. Refund admissible court fees.

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