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Judgment
F.M. Reis, J.—Heard Shri M. S. Joshi, learned Counsel appearing for the Petitioner, Shri M. B. D'' Costa, learned Senior Counsel appearing for the Respondent nos. 1 and 2 and Shri Timble, learned Counsel appearing for the Respondent no. 3. Rule.
Heard forthwith with the consent of the learned Counsel appearing for the parties. Learned Counsel appearing for the Respondents waives service.
The above Petition challenges the Order dated 24.02.2011, whereby the application filed by the Petitioner for transposition under Order 1 Rule 10 of the CPC came to be rejected. At the hearing of the above Petition, on perusal of the application filed by the Petitioner, I have noticed that apart from seeking transposition, the Petitioner has not sought for any consequential amendment to the plaint which would be necessary to consider the matter in controversy and taking note of the original pleadings in the plaint. When this aspect was pointed out to the learned Counsel appearing for the Petitioner, Shri Joshi, upon instructions, pointed out that he shall file an appropriate composite application seeking transposition as well as consequential amendment to the plaint. The learned Counsel appearing for the Respondents have no objections, provided their respective contentions on merits are left open.
Without going into the merits of the matter, I find it appropriate that liberty be given to the Petitioner and the learned Judge should be directed to decide any such application afresh after hearing both the parties in accordance with law. In view of the above, I pass the following:
ORDER
(i) The impugned Order dated 24.02.2011 is quashed and set aside.
(ii) The Petitioner is given liberty to file an appropriate composite application seeking transposition as well as consequential amendment to the plaint and any such application shall be decided by the learned Judge after hearing the Respondents in accordance with law. All contentions of the parties on merits are left open.
(iii) Rule in above terms.
(iv) Petition is disposed of accordingly.