Court validated amendments in partition suits, dismissing lower court's restrictive conditions on transposition of parties.

1. Rule. Rule made returnable forthwith. With the consent of parties taken up for final hearing.

2. The challenge in the petition is to the order dated 26th October, 2017 passed below Exhibit 01 and order dated 31st October, 2017 passed below Exhibit 588 in R.C.S. No. 67 of 1998. 3. The facts of the case are required to be set out in detail for consideration of the controversy in issue. For the sake of convenience, the parties are referred to by their status before the Trial Court.

4. The petitioner herein was initially arrayed as the defendant No. 1 in R.C.S. No. 67 of 1998 filed by the original plaintiffs Parigabai and her husband Ramdas against their four sons and a daughter, for partition of the suit property. The suit was contested by defendant No. 1, defendant no 2 and defendant no 5, whereas the defendant Nos. 3 and 4 supported the case of the plaintiffs. During the pendency of the suit the plaintiff No. 2/ Ramdas expired and an application came to be filed below Exhibit 59 by the defendant No. 1 for transposition as plaintiff being the legal representative of the deceased plaintiff No. 2. This application below Exhibit 59 came to be allowed by order of the Trial Court dated 07th August, 2013 with a condition that he shall not be permitted to amend or take a different stand different from the pleadings in the plaint of R.C.S. No. 67 of 1998 for the reason that the original plaintiffs had claimed partition, whereas the defendant No. 1 had taken exactly opposite stand. The order of the Civil Court dated 07th August, 2013 came to be challenged by the parties by preferring Writ Petition No. 936 of 2014, which came to be filed by the defendant No. 1 and Writ Petition No. 672 of 2014 filed by the defendant Nos. 3, 4 and 5. As far as Writ Petition No. 936 of 2014 is concerned, the petitioner therein i. e. the defendant No. 1 was aggrieved by the conditions which were imposed by the Civil Court while granting the application for transposition, whereas the Writ Petition No. 672 of 2014 was preferred by the defendant Nos. 3 to 5 being aggrieved by the order permitting transposition of the defendant No. 1 as plaintiff No. 3. This Court by order dated 19th January, 2015 in Writ Petition No. 672 of 2014 passed the following order.

. With the consent of the parties, heard finally.

2. Defendant No.1 to Regular Civil Suit No. 67 of 1998, a suit for partition moved an application at Exhibit-59 before learned 2nd Joint Civil Judge, Junior Division, Kopargaon for transposing him as plaintiff after death of plaintiff No.2 Ramdas. The said application is granted by learned trial Judge by an order dated 07/08/2013.

2. Present petitioners have questioned the said order on the count that the provisions of Order 22 Rule 2 and 3 of Civil Procedure Code are not complied with, as right to sue survives in plaintiff No.1 and if defendant No.1 has sought transposition in the capacity of legal heir of father i.e. plaintiff No.2, the provisions of Order 22 Rule 3 of Code of Civil Procedure should have been followed.

3. He submits that in view of non compliance of the said provisions, the impugned order is not sustainable. In addition to above, learned Counsel for the petitioners has invited my attention to the written statement filed by the petitioners. According to them, respondent No. 2 herein, who has sought transposition has taken contradictory plea thereby destroying the case of present petitioners and as such, transposition sought for by him ought not to have been permitted.

4. Learned Counsel for respondent Nos. 1 and 2, while opposing the s