Mrs. Dharam Pal Saghera vs Smt. Harshinder Kaur Saghera and Others

Mahesh Grover, J.—The petitioner is aggrieved by the order dated 26.4.2010 by which her application for being transposed as a plaintiff in the event of death of Gurbachan Kaur Saghera, who was the original plaintiff, has been declined. The trial court while declining the application ostensibly proceeded on the assumption that the applicant wants the transposition of defendant No. 1 i.e. Smt. Harshinder Kaur Saghera, which in fact was not the case as the petitioner wanted herself to be transposed as plaintiff. The entire reasoning of the trial court is upon this apprehension which is also reflected in the reasoning given in the impugned order when the trial court observed that respondent No. 1 is the main contesting defendant and she is seeking the relief which is sought by the plaintiff for herself. In such an eventuality the application was held to be misconceived and declined.

Learned Counsel for the petitioner states that this in fact is an error which has been committed by the court below and in fact it is the applicant who wanted herself to be transposed as plaintiff after the death of Gurcharan Kaur Saghera and especially when she in her written statement filed in the capacity of defendant No. 3 was supporting the case of the plaintiff. He thus contended that there is a serious error committed by the trial court and that the transposition of the petitioner is not likely to impede the process in the suit for the simple reason that she herself was supporting the case of the plaintiff.

Learned Counsel for respondent No. 1 has raised serious objection to the contentions raised by the learned Counsel for the petitioner. He is on caveat. He stated that the application is no application in the eyes of law as the same was not verified and was also not supported by an affidavit.

After hearing the learned Counsel for the parties, I am of the opinion that the contention of the learned Counsel for respondent No. 1 is not entirely misplaced. The application was not in accordance with law but in so far as the other substantive objection is concerned, learned Counsel for respondent No. 1 could not satisfy the court. It appears that the objection to the application being allowed is merely an imaginary fear in the mind of respondent No. 1.

The respondents would not have suffered any prejudice if the application would have been allowed, more so when the petitioner was supporting the case of the plaintiff. The revision petition is, therefore, disposed of with the observation that the petitioner, if so advised, shall move a fresh application in accordance with law duly supported by an affidavit which shall be reconsidered by the learned trial court in the light of the observations which have been made above. The impugned order is set aside.

Let the needful be done within a period of one week from the date when the application is moved.