S.K.MAL LODHA, J. -
(1.)THIS order will dispose of two applications : (i) application dated April 11, 1984 under Order XXIII, Rule 1 and Section 151 CPC filed on behalf of the appellant and (ii) application dated April 17, 1984 under Order I, Rule 19 and Section 151 CPC read with sections 46 and 49 of the Rajasthan Municipalities Act (No. XXXVIII of 1959) (for short 'the Act' herein) filed on behalf of respondent No. 3 for transposing him as appellant.
(2.)AN election petition under Section 36 of the Act was filed by the appellant against the respondents. Respondent No. 1 is the elected member and respondents No. 2 to 4 are defeated candidates and respondent No. 5 is Returning Officer, Sojat Municipal Elections, which were held on February 19, 1982. After trial, the learned Munsif, Sojat by his judgment dated October 23, 1982 dismissed the election petition and held that respondent No 1 Pokar Ram is a properly elected member off, Ward No. 16 of the Municipal Board, Sojat. An appeal was filed by the appellant Under Section 46 of the Act on November 26, 1982 questioning the correctness of the judgment dated October 29, 1982 of the Munsif dismissing the election petition. On January 5, 1983 on behalf of the appellant an application was filed praying therein that the appellant may be allowed to withdraw the appeal. Thereafter, an application under 0 -1, Rule 19 and Section 151 CPC read with Section 46 of the Act was submitted on behalf of respondent No. 3 Hariram, the (sic)defeatedkcandidate on January 6, 1983 that he may be transposed as the appellant in place of respondent No. 3. The Court by its order dated January 30, l983 ordered for the issuance of the notice on both the aforesaid applications to respondents No. 2, 4 and 5. However, on February 28,1983, the appellant moved an application that he does not want to withdraw the appeal but wants to prosecute it further, and, therefore, he may be allowed to withdraw the withdrawal application. That application was contested by respondent No. 1 by filing a reply on various grounds. This Court by its order dated April 7, 1983 held that as the appellant has filed an application to withdraw the withdrawal on February 28, 1983, the appeal cannot be dismissed as withdrawn in pursuance of the withdrawal application dated January 6, 1983. Both the applications dated January 6, 1983 and February 28,1983 were, accordingly, dismissed of.
However, thereafter on April 11, 1984, another application was filed by the appellant which is also signed by his counsel Shri S.K. Sharma, Advocate stating that the appellant does not want to prosecute this appeal butt wants to withdraw the same and, therefore, he may be allowed to withdraw the appeal. On April 17, 1984, another application under'01, 10 CPC and Section 151 CPC read with sections 46 and 49 of the Act was filed praying that respondent No. 3 may be allowed to be transposed as the appellant in place f respondent No. 3. On behalf of respondent No. 1 a reply was filed on August 23, 1984 supported by the affidavit of respondent No. 1.
(3.)I have heard Mr. K.C. Samdariya, learned Counsel for the appellant, Mr. Rajendra Mehta, learned Counsel for respondent No. 1 Mr. B.M. Singhvi, learned Counsel for sespondent No. 3 and Mr. H.N. Calla, learned Government Advocate for respondent No. 5.