The court has the power to transpose a respondent as an appellant in an appeal, even after the expiry of the limitation period, if it is in the interest of justice and the rights of the other parties are not prejudiced.

1. - Heard learned counsel for the parties on application filed by respondent No. 6 seeking transposition as appellant in the present appeal.

2. It is, inter alia, indicated in the application that before the trial court the applicant was impleaded in the suit as legal representative of deceased Narendrasingh Bhati, who was plaintiff along with her brother and sister; while the present appeal has been filed by one of the sisters another appeal being S.B. Civil First Appeal No.349/2013 has been filed by the brother, and the interest of legal representative of respondent No.6 and the appellant are common and same; it would be just, proper and in the interest of justice that the applicant be transposed as appellant in the present appeal and the rights and interest of the other parties to the appeal are not going to be adversely affected in any manner.

3. Though, a reply to the application has been filed by the appellant, inter alia, indicating that without prejudice to her legal right and interest with the respondent No.6, the appellant does not have any objection to the impleadment and her transposition as a co-appellant.

4. A reply has been filed by the respondent Nos.1 to 4, inter alia, indicating that the applicant was well aware about the decision in the case and filing of the appeal, but at that time did not chose to contest the appeal and did not file a separate appeal and was sleeping over her right and now cannot be permitted to take benefit of her own wrong to bypass the rigour of law of limitation by way of filing the present application. It is indicated that the rights of the respondents will be adversely affected if the applicant is permitted to be transposed as appellant. The applicant having chosen not to file an appeal separately, cannot be permitted to now file the present application and force the respondent to face one more appellant in the present litigation.

5. It is submitted by learned counsel for the applicant that the rights of the appellant and respondent Nos.1 to 4 shall not be prejudiced by the fact of her transposition as co-appellant and, therefore, the application may be allowed.

6. While, learned counsel for the appellant has reiterated the stand taken in the application, learned counsel for the respondent Nos.1 to 4 has vehemently opposed the application. It was, inter alia, submitted that the application does not disclose any reason for the transposition; the transposition would be apparently barred by limitation and the said application has been filed merely to over come rigour of the Limitation Act.

7. I have considered the rival submissions.

8. Apparently, the provision relating to transposition of a respondent as appellant is envisaged only by provisions of Rule 1A Order 23 CPC where a suit is withdrawn or abandoned by a plaintiff and a defendant applies to be transposed as plaintiff under Rule 10 of Order I CPC, the application can be considered by the Court for the reasons indicated in the said Rule.

9. Order I Rule 10 CPC deals with impleadment of parties and confers power on the Court to strike out or add parties at any stage of the proceedings, either suo moto or on application of either party on such terms as may appear to the Court to be just. It would be appropriate to reproduce Rule 10 of Order I CPC, which reads thus:

"10. Suit in name of wrong plaintiff.
- (1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.

(2) Court may strike out or add parties. - The Court may at any stage of the proceedings, either upon or without the application or either party, and on such