TMI Blog2019 (10) TMI 1277X X X X Extracts X X X X X X X X Extracts X X X X ..... ve not dismissed the application filed by JCS. We may note that the so called settlement agreement clearly shows that respondent nos. 2(A) to 2(D) had not received any amount from the appellants. There was no transfer of interest in favour of the appellants by this document. All that the respondent nos. 2(A) to 2(D) said was that they stood by the sale deed executed by their father through the power of attorney in favour of the appellants - JCS need not even challenge the so called settlement because that settlement does not, in any way, create any title, right or interest in the suit parties. JCS is entitled to continue the suit despite respondent nos. 2(A) to 2(D) having compromised the matter and withdrawn from the suit. Their withdra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment filed in the suit, admitted that the power of attorney did not give him any power to sell the land. He further stated that he had never executed the sale deed in favour of predecessor-in-interest of the appellants. 3. On 23.03.2007, respondent no. 1, Jayeshkumar Chhakaddas Shah (for short JCS ), purchased the land from MMT on payment of ₹ 10,00,000/-. This sale deed was registered and, according to JCS, possession was handed over to him by MMT. Further, according to JCS, MMT had given an undertaking in the sale deed that there is no proceeding pending with regard to the suit land. MMT died on 02.06.2007. On 02.07.2007, JCS filed an application under Order I Rule 10, Code of Civil Procedure, 1908 (for short CPC ) for impleadi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nor can any party force the plaintiff to add another plaintiff with him. It is also urged that in case JCS is permitted to be added as plaintiff no. 2, there will be an inter se clash of interest between plaintiffs themselves and, therefore, the trial court was right in holding that the plaintiff should file a separate suit to assert his rights. On the other hand, Mr. Huzefa Ahmadi, learned senior counsel appearing for the respondents, submits that though it is true that it would be Order XXII Rule 10 CPC, which is applicable, the substitution must be allowed and the plaintiff, who has purchased the land from MMT, has a right to be substituted in his place. He further submits that there is no clash between the case of his client and that s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1). 8. It is well settled law that mere non-mentioning of an incorrect provision is not fatal to the application if the power to pass such an order is available with the court. 9. MMT had assigned his rights and interest in the land in favour of JCS. Therefore, JCS as an assignee of the rights of the original plaintiff, had a right to be impleaded as a plaintiff in place of MMT. 10. The next question is what is the effect of the legal heirs of MMT withdrawing the suit. As noted by us above, JCS filed an application for being joined as plaintiff no. 2 in the suit on 02.07.2007. Subsequently, a settlement was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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