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6. He also submits that provisions of Order 23 Rule 1-A only applies for withdrawal of the suit and not for withdrawal of appeal.

7. Per contra, Sh. Aalok Jagga, learned counsel for respondent No.1 has submitted that the application filed by the petitioner for transposition is premature as the transposition is permitted under Order 23 Rule 1A CPC where appellant prefers to withdraw and then respondent can apply for transposition and since the appeal has been filed by respondent No.2/defendant No.1 only and as the appellant has not filed any application for withdrawal of his name before the appellate Court and is pursuing the appeal, therefore, no question of transposition arises in the present case and consequently, the application for transposition is premature and not maintainable. He further submitted that the petitioner has approached the lower Appellate Court by filing application for transposition by mis-stating the facts as in para 3 of the application for transposition it has been stated that there 6 of 25 Neutral Citation No:=2023:PHHC:126756 CR-1789 of 2019 is no inter se dispute between the defendants and appellant and whereas civil suit No.88 of 2011 was filed by the petitioner along with other defendants against defendant No.2/respondent No.2 wherein former claimed title to the properties of late Babru Bhan on the basis of 'will' dated 30.12.2008 whereas contrary stand has been taken by defendant No.1 Narender Singh Yadav that he is absolute owner being real brother of the deceased as Class-II legal heir as per Hindu Succession Act, 1956 as Babru Bhan has died intestate and no 'will' was executed. Therefore, there is inter se dispute between them. He further submitted that even in the appeal itself, the appellant has submitted that there is inter se dispute between the defendants and separate statements were filed before the trial Court in the suit filed by plaintiff/respondent No.1 and, therefore, appeal was filed only by respondent No.2/defendant No.1 and since it is the own case of the appellant that there is no commonality of interest and there is dispute inter se between the parties and since the interest of the appellant and petitioner (respondent Nos.2 to 13) is totally different, therefore, no question of transposing the present petitioner as co-appellant in the appeal arises. He further submitted that no reasons have been assigned either in the application filed before the lower appellate Court or in the present revision petition as to why, although petitioner (including respondent Nos.2 to 13) have contested the civil suit and decree passed in their presence, being aware of the judgment, they have not chosen to file appeal under Order 47 Rule 1 CPC and since no appeal has been preferred by the petitioner, now he cannot be transposed as appellant.

7 of 25 Neutral Citation No:=2023:PHHC:126756 CR-1789 of 2019 He further submitted that since the petitioner is party in the appeal as proforma respondent yet he has a right to make submissions to support or oppose the impugned judgment/decree under Order 41 Rule 33 CPC. Although in case the appeal is allowed, he would have no right to file regular second appeal and the actual reason for filing the application for transposition is to file regular second appeal, which cannot be permitted at this stage as the petitioner has chosen not to file the appeal nor the cross-objections. He further submitted that under Order 41 Rule 4 CPC, petitioner can still take the benefit although he has not preferred any appeal yet as the appeal is pending, and if the decision is varied or altered, such variance in the order shall be for all the plaintiffs or defendants, which will include even those who did not file appeal. He further submitted that there is an infirmity in the application and the present revision petition as the application for transposition was filed in the appellate Court was neither signed by defendants No.2 to 13 nor supported by an affidavit and even the present revision petition has been preferred by only one person i.e. defendant No.5 in the suit, namely, Ashok @ Babbu and he is seeking transposition for respondents/defendants No.2 to 13.

15. If argument of petitioner is accepted, anomalous situation will arise as if a person belatedly files cross-objections under Order 41 Rule 22 i.e. beyond one month stipulated therein and the delay is not condoned by the Appellate Court and such objection is dismissed and prefers no appeal, allows it to attain finality; then can he still file a transposition application to defeat such dismissal order passed by the Appellate Court which cannot be the correct interpretation of law.

30. The aforesaid judgment has been reiterated by Hon'ble Supreme Court in Lachhman v. G. Ayyasamy-2016(13)-SCC-165.

31. As per provision of Order 23 Rule 1A CPC, when the plaintiff withdraws his suit and any of the defendant wants to be transposed (transfer himself as plaintiff) AND if there is any substantial question to be decided as against other defendants, the application for transposition may be allowed and defendant may be transposed as 22 of 25 Neutral Citation No:=2023:PHHC:126756 CR-1789 of 2019 plaintiff in the suit. For example, A filed a suit against B, C and D, after some time, A wants to withdraw his suit, then B files an application to Court to transpose him as plaintiff while deciding this application the Court has to decide whether the defendant (applicant) has any substantial question to be decided against any other remaining defendants in the suit.