Neeraj Parmar vs Yogendra Parmar

NEUTRAL CITATION NO. 2026:MPHC-JBP:83805
1 MP-1122-2026
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR

BEFORE
HON'BLE SHRI JUSTICE DEEPAK KHOT
th
ON THE 13 OF OCTOBER, 2026
MISC. PETITION No. 1122 of 2026
CNR No.: MPHC010130682026
NEERAJ PARMAR AND OTHERS
Versus
YOGENDRA PARMAR AND ANR
Appearance:
Shri Sunil Kumar Jain - Advocate for the petitioner.
Ms. Sunita Sood - Advocate for the respondent.
ORDER
The present petition under Article 227 of the Constitution of India has
been filed challenging the legality, propriety and validity of the order dated
16.01.2026 passed by the learned Second Civil Judge, Senior Division,
Mandla, in MJC No. 03/2026, whereby the application preferred by the
petitioners/defendants under Order XLVII Rule 1 read with Section 114 of
the Code of Civil Procedure, 1908, seeking review of the order in question,
has been rejected.
2. The brief facts of the case are that the respondent no.1/plaintiff has
filed Civil Suit No. RCSA/146/2024 seeking declaration of title, partition,
possession and permanent injunction against the petitioners/defendants,
wherein he has impleaded his father Bhagwanlal as defendant No. 7.
Defendants No.1 to 5 objected to the maintainability of the suit on the
Signature Not Verified
Signed by: HEMANT SARAF
Signing time: 10/16/2026
5:00:57 PM

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ground that the petitioner, being the son of Defendant No. 7, had no

independent right to institute the suit during the lifetime of his father, and
accordingly filed an application under Order VII Rule 11 of the Code of
Civil Procedure, 1908, which was dismissed by the trial Court. Aggrieved
thereby, they preferred Civil Revision No. 854/2025 before this Hon’ble
Court, which is pending consideration. During the pendency of the suit,
Defendant No. 7 filed an application under Order I Rule 10(2) CPC on
10.10.2025 (Annexure P/2) seeking his impleadment as Plaintiff No. 2,
which was allowed by the trial Court vide order dated 10.12.2025 (Annexure
P/3), without serving a copy of the application upon or affording an
opportunity of hearing to Defendants No. 1 to 5. The petitioners thereafter
filed an application under Order XLVII Rule 1 read with Section 114 CPC,
registered as MJC No. 03/2026, on 05.01.2026 (Annexure P/4), alleging
collusion between the petitioner and Defendant No. 7 and challenging the
aforesaid order on the ground of violation of the principles of natural justice;
however, the said review application was dismissed by the trial Court vide
order dated 16.01.2026 (Annexure P/1). Being aggrieved by the dismissal of
the review application, the petitioners have preferred the present petition
before this Hon’ble Court.
3- It is submitted by the learned counsel for the petitioner that the
learned Trial Court has committed an error of law and procedure in passing
the impugned order at annexure P/1, as it allowed the application filed by
defendant No. 7 under Order I Rule 10(2) CPC without supplying a copy
thereof to petitioners or affording them an opportunity of filing their reply
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Signing time: 10/16/2026
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and advancing arguments. It is submitted that petitioner has pleaded that the

plaintiff, being the son of defendant No. 7, had no right to seek declaration
of his right in the disputed property during his father's lifetime and that the
plaintiff and respondent No. 7 were acting in collusion to defeat their
defence. The petitioner further submits that the order dated 10.12.2025 does
not reflect that petitioners were heard on the said application, and the mere
recording of the appearance of their counsel cannot be treated as an effective
opportunity of hearing. It is, therefore, contended that the Trial Court ought
to have considered the objections of petitioners and reviewed its order in
view of the apparent error. Accordingly, the petitioner seeks setting aside of
the impugned order and a direction to the Trial Court to issue direction to
supply a copy of the application to petitioners and afford them an
opportunity to file their reply and make submissions in accordance with law.
4. Per contra, learned counsel for the respondents opposed the
submissions made by counsel for the petitioner and submitted that defendant
no.7 has rightly been transposed as plaintiff in the suit. It is further
submitted that by transposing defendant no.7 as plaintiff in the suit, no
prejudice is being caused to the defendants. Hence, submitted that the
findings arrived at by the court below are just and proper and does not
warrant any interference.
5. Heard learned counsel for the petitioner and perused the record.
6. The core question is whether the transposition of Defendant No.7 as
Plaintiff No.2 under Order 1 Rule 10(2) CPC could have been allowed
without notice to Defendants No.1 to 5. Admittedly, civil suit
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Signed by: HEMANT SARAF
Signing time: 10/16/2026
5:00:57 PM

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RCSA/146/2024 has been filed seeking declaration, partition and possession

by the son against defendants no.1 to 5 by impleading his own father as
Defendant No.7,. Defendants No.1 to 5 had raised a objection under Order 7
Rule 11 CPC that the son has no independent cause of action during the
lifetime of his father. Their revision being C.R. No.854/2025 is pending
before this Court. In this backdrop, Defendant No.7 filed application dated
10.10.2025 seeking his transposition as Plaintiff No.2. A bare perusal of
order dated 10.12.2025 shows that though presence of counsel for
Defendants No.1 to 5 is marked, there is no reference that copy of the
application was supplied to them, neither time was granted to file reply nor
arguments of Defendants No.1 to 5 have been considered. The order has
been passed solely on the consent of the original plaintiff. The law regarding
transposition is no doubt discretionary and plaintiff is dominus litis.
However, the proviso to Order 1 Rule 10(2) CPC and principles of natural
justice mandate that no addition, deletion or transposition of parties shall be
made without notice to all parties interested. When Defendants No.1 to 5 had
already raised issue of maintainability and collusion between Plaintiff and
Defendant No.7, they were necessary to be heard.
7. A Division Bench of the Delhi High Court in the case of Vijay
Verma Vs. Indira Warman and others, in FAO (OS) No.71/2024 decided on
22.12.2025 has held as under :-

45. This Court is of the considered opinion that where a
Defendant moves an application for transposition, the right to
oppose is not confined exclusively to the Plaintiff. Order XXIII
Rule 1A does not expressly restrict opposition to the Plaintiff
alone; it requires the Court to examine whether the applicant
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Defendant has a 'substantial question' to be decided against any of
the other Defendants, thereby directly engaging the interests of
those other Defendants. The language of Order XXIII Rule 1A
contemplates inter-Defendant contest and presupposes that
multiple Defendants may have differing positions on the
existence of a substantial question.
46. Any party whose legal rights or substantive interests may
be affected by the proposed change in status has a legitimate stake
in the outcome. Since the core test for transposition is the
existence of a substantial question between the applicant
Defendant and other Defendants, the latter cannot be relegated to
passive observers; they must be heard in opposition where
appropriate. Limiting opposition solely to the Plaintiff would
undermine the protective purpose of the provision and deprive
other Defendants of an opportunity to safeguard their rights in
relation to the substantial question raised.
47. Moreover, the discretionary power under Order I Rule 10(2)
is overarching and exercised in light of the interests of justice,
equity, and fair play, extending beyond the narrow rights of the
original Plaintiff. Accordingly, both the Plaintiff and any
Defendant or other directly affected party are entitled to oppose
the application, and the Court must consider all such objections on
their merits before granting relief. Hence, Issue No.III is decided
in the aforesaid terms.


8. The learned trial Court in MJC No.03/2026 has dismissed the
review application on the ground that review cannot be treated as an appeal
and there is no error apparent on the face of record. The said principles are
not disputed. But failure to afford an opportunity of hearing and deciding an
application which alters the very complexion of the suit is itself an error
apparent on the face of record and also a procedural illegality causing failure
of justice. Such error is squarely covered by Kamlesh Verma Vs. Mayawati
and others, (2013) 8 SCC 320. Non-supply of copy of application and non-
grant of opportunity to file reply cannot be cured by mere presence of
counsel. The right to be heard is not an empty formality. The trial Court,
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therefore, ought to have recalled order dated 10.12.2025 in exercise of

review jurisdiction. Resultantly, the impugned order dated 16.01.2026 passed
in MJC No.03/2026 and consequently the order dated 10.12.2025 passed in
I.A. No.4/2025 cannot be sustained and are hereby set aside. The matter is
remanded back to the trial Court with a direction to supply a copy of the
application dated 10.10.2025 filed by Defendant No.7 under Order 1 Rule
10(2) CPC to Defendants No.1 to 5 / petitioners herein, grant them a
reasonable opportunity to file their reply/objections and afford an
opportunity of hearing to all concerned. Thereafter, the trial Court shall
decide the said application afresh, on its own merits, in accordance with law,
without being influenced by its earlier orders or by any observation made by
this Court in this order. It is made clear that this Court has not expressed any
opinion on the merits of the transposition application.
9. With the aforesaid directions, the petition stands disposed of. No
order as to costs.
(DEEPAK KHOT)
JUDGE
HS

Signature Not Verified
Signed by: HEMANT SARAF
Signing time: 10/16/2026
5:00:57 PM