The court emphasized that the relief sought by the proforma defendants must align with their claims and cannot extend beyond the scope of the original suit.

Tarun Agarwala, J.:-

Heard Mr. Nagesh Agarwal, the learned counsel for the petitioner and Mr. Neeraj Garg and Mr. Ramji Srivastava, the learned counsel for the respondents.

2. The plaintiff respondent no. 6 filed a suit for injunction praying that the de­fendant nos. 1 to 5 should be restrained from interfering in the joint possession of respondent no.6 and the proforma defend­ant no. 7. It is alleged that during the pendency of the suit, the plaintiff sold his share of the property to defendant nos. 1to 5 and, thereafter, filed an application for withdrawal of the suit. The proforma defendants nos.6 and 1 namely, the peti­tioners filed an application under Order 23 Rule 1-A read with Order 1 Rule 10 of the C.P.C. praying that the said defendants may be transposed as plaintiffs and may also be permitted to continue with the suit. The application of the plaintiff was allowed and the suit was dismissed as withdrawn and the application of the petitioners for transposition as plaintiff was rejected. The petitioners, being aggrieved by the said or­der, has filed the present writ petition.

3. The learned counsel for the peti­tioners submitted that admittedly the prop­erty was ancestral and joint between the plaintiff and the petitioners and that the plaintiff could not have sold the property to defendant nos. 1to 5 unless the ances­tral property was partitioned by metes and bounds, which in the present case, had not been done. The learned counsel submit­ted that even though, the petitioners were arrayed as proforma defendants, they had filed their written statement claiming therein that they should be granted similar relief as claimed by the plaintiff and, therefore, the learned counsel for the petitioners sub­mitted that the application for transposi­tion as plaintiffs had rightly been filed and ought to have been allowed by the court below. For facility, the provision of Order 23 Rule 1 and Rule 1-A of the C.P.C. is extracted hereunder :-

"1. Withdrawal of suit or aban­donment of part of claim. (1)

At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:

Provided that where the plaintiff is a minor or other person to whom the provisions contained in Rules 1 to 14 of Order XXXII ex­tend, neither the suit nor any part of the claim shall be abandoned without the leave of the court.

(2) An Application for leave under the proviso to sub-rule (1) shall be ac­companied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certifi­cate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other, person.

(3) Where the court is satisfied,-

(a) that a suit must fail by reason of some formal defect, or

(b) that there are sufficient grounds for allowing the plaintiff to insti­tute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.

(4) Where the plaintiff- (a) abandons any suit or part of claim under sub-rule (1); or

(b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.

(5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to with­draw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs.

1 -A. When transposition of defend­ants as plaintiffs may be per­mitted. - Where a suit is with-drawn or abandoned by a plain­tiff under Rule 1, and a defend­

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