The main legal point established is the wide discretion of the court to transpose a necessary party for an effective adjudication, as outlined in Section 151 of the Civil Procedure Code and the principles discussed in relevant case law.

1. This Civil Revision Petition is filed challenging the order passed by the learned Additional Subordinate Judge, Salem in I.A.No.4 of 2005 in A.S.No.84 of 2004, in and by which the learned Additional Subordinate Judge had allowed the Application filed by the first respondent herein seeking to transpose herself as one of the appellant in the above First Appeal.

2. The brief facts necessary for the disposal of this Civil Revision Petition are as follows:

The revision petitioner herein had filed a Suit in O.S.No.419 of 1999 on the file of the learned Principal District Munsif Court, Salem for the following reliefs:

"restraining the defendant by way of permanent injunction from selling any portion of the suit pathway also annexing the same to his land in S.No.46/2B lying South of it; directing the first defendant by way of mandatory injunction to restore the suit pathway to its original width of 12 feet throughout its length of about 50 feet by removing the boundary stones put up by him in the pathway; failing which the same may be removed through court process and restraining the second defendant from by way of permanent injunction from in any manner causing interference to the plaintiff's user of the suit pathway to go to his lands and house lying on the west through the suit pathway from the Yercaud Main Road."

3. The suit in O. S. No.419 of 1999 was decreed on 10.08.2004, in and by which the learned District Munsif, Salem had granted a permanent injunction restraining the respondents herein from interfering with the plaintiff's use of the pathway and also directing the second respondent herein to restore the pathway to its original width. The first respondent herein was impleaded as a party to the proceedings since she had purchased the property of the second respondent pending the suit. However, she was set ex-parte in the above suit. Aggrieved by the judgment and decree passed by the learned Principal District Munsif, Salem in O.S.No.419 of 1999 dated 10.08.2004, the second respondent herein had filed a First Appeal in A.S.No.84 of 2004.

4. Pending the Appeal, the first respondent herein had taken out the impugned Interlocutory Application seeking to transpose herself as an appellant in the above First Appeal. In the affidavit filed in support of the petition, the first respondent had come forward with a statement that she had no occasion to know about the proceedings in O.S.No.419 of 1999 and on account of the judgment and decree passed by the learned Principal District Munsif, Salem in O.S.No.419 of 1999, her interest, right and enjoyment of the property was in a jeopardy. She would further contend that she was under the impression that her interest would be safeguarded by the second respondent herein. Since that did not take place, she sought to get herself transposed as an appellant.

5. The revision petitioner filed a counter affidavit stating that the first respondent having remained ex-parte without even filing a written statement cannot be permitted to be transposed as an appellant when she has not even contested the suit. He would further contend that there is no procedure under Code of Civil Procedure (hereinafter referred to as C.P.C) to transpose the defendant who has remained ex-parte and figured as a respondent in the above suit as an appellant in the First Appeal. The invocation of Section 151 of C.P.C by the first respondent to have herself transposed was criticized by the revision petitioner. He would contend that the only remedy that was available was to set aside the ex-parte decree or to file a fresh Appeal against the ex-parte decree.

6. After hearing both parties, the learned Additional Subordinate Judge, Salem by his order dated 02.02.2005, allowed the Application in I.A.No.4 of 2005 on the ground that the same would not cause prejudice to any one. Aggrieved by this order, the revision petitioner has filed the present petition.

7. Mr. N. Manoharan, learned counsel appearing on behalf of the petitioner