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2000 DIGILAW 553 (KER)

Ramakrishnan v. Thanka

2000-10-24

M.R.HARIHARAN NAIR

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Judgment :- M.R. Hariharan Nair, J. The revision petitioners are the defendants 1 and 2 and supplemental plaintiffs in O.S. No. 58/91 which is a suit for partition. They challenge the orders passed allowing I.A. Nos. 3988 & 3993/97 the prayers in which were for restoration of the suit for partition to file, and for transposing the 6th defendant as supplemental 6th plaintiff. 2. The learned counsel for the respondents placed reliance on O. XXIII R.1-A of the Code of Civil Procedure to contend that where a plaintiff has abandoned a case as done in the present case, the defendant has a right to be transposed as a plaintiff' and to proceed with the suit. According to the learned counsel for the revision petitioners O. XXIII R.1-A cannot be called in aid after the disposal of the suit. It is also argued that O. IX R.9 of the CPC cannot be invoked by a defendant to the suit for restoration of the suit. The transposition sought for by the 6th defendant was resisted on the ground that the suit is no more alive. 3. O. XXIII R.1-A of the CPC provides as follows: "1-A. When transportation of defendants as plaintiffs may be permitted. - Where a suit is withdrawn or abandoned by a plaintiff under R.1, and a defendant applies to be transposed as a plaintiff under R.10 of 0.1, the Court shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants." It is obvious from the section itself that it will apply not only to a case where the suit is withdrawn but also where it is abandoned by a plaintiff. The fact that the abandonment has resulted in disposal of the case does not appear to be of much significance on the facts and circumstances of the case because here is a case where the application was filed on the very same day when the suit was dismissed. 4. It is true that the plaintiff has a right to abandon his suit at any stage. But if there is any substantial question to be decided in the suit, the court definitely has the power to allow transposition so that the suit can be pursued. 4. It is true that the plaintiff has a right to abandon his suit at any stage. But if there is any substantial question to be decided in the suit, the court definitely has the power to allow transposition so that the suit can be pursued. The present suit is one for partition and each of the parties, whether arrayed as plaintiff or defendant, if he is a sharer, is in the position of a plaintiff as far as the relief of partition is concerned. Even if the original plaintiff abandons the suit, the defendant - sharers definitely have a right to proceed with the suit so that the substantial question of partition can be got decided in the same suit. The contention of the revision petitioners is that the relief can be worked out by the respondents in a fresh suit for partition. Of course, that is also possible; but that does not stand in the way of a defendant working out his rights under O. XXIII R.1-A of the CPC so that unnecessary wastage of time and expenses can be avoided. It is pertinent in this regard that in the instant case the 6th defendant is a party who has already paid court fee for separate allotment of his share. If a fresh suit is directed, she may have to incur the same expense all over again. The suit is already 9 years old and if any fresh suit is directed, probably similar delay may be involved therefore also. 5. The learned counsel for the revision petitioners submits that the dismissal of the suit in the instant case was for the reason "not pressed" and that it cannot be taken as 'abandonment'. According to him, abandonment will arise only when the original plaintiff fails to appear in court and if the suit is dismissed for default. I do not find any force in the said argument. Abandonment can be either through positive submission or through silence leading to lapse. If one allows his suit to go for default, that will be abandonment by silence. It is also open to him to abandon the suit by making a direct request to the court after due appearance. I do not find any force in the said argument. Abandonment can be either through positive submission or through silence leading to lapse. If one allows his suit to go for default, that will be abandonment by silence. It is also open to him to abandon the suit by making a direct request to the court after due appearance. By stating "not pressed" in the instant case what the plaintiffs have achieved is actually abandonment of the suit and hence O. XXIII R.1-A of the CPC certainly applies to the facts of this case. 6. Technically speaking, an application under O. IX R.9 of the CPC can be filed only by a plaintiff; but here is a case where the suit is one for partition and in that sense even the 6th defendant is in the position of a plaintiff. That apart, even if O. IX R.9 of the CPC does not apply here, the suit can definitely be restored if it becomes essential for enabling the petitioners to realise or effectuate their rights under O. XXTTT R.1 -A of the CPC. His right cannot be defeated by stating that the suit is no more alive. Whether the suit is alive or not, if the suit has to be allowed to be proceeded with as contemplated in O. XXIII R.1-A and if the process of restoration is essential therefore, the court has power to order such restoration even under S.151 of the CPC. His right under the provision cannot be defeated through technical contentions. 7. If the prayer in LA. No.. 3993/97 is allowed as it is, a situation would be reached where the parties with rival and conflicting interests would come to be arrayed as co-plaintiffs. It is better in the interest of all parties that the plaintiffs who have abandoned the suit are transposed as defendants in view of the new developments. The proper order to be passed in LA. No. 3993/97 is therefore to transpose the 6th defendant as a plaintiff and to transpose the plaintiffs who have abandoned the suit as defendants. 8. The prayer in LA. 3993/97, in the circumstances, is allowed with the said modification. The suit is also restored to file. The court below will allow the 6th defendant to bring in necessary amendments to the plaint consequent on the transposition as above and to proceed with the suit in accordance with law. 8. The prayer in LA. 3993/97, in the circumstances, is allowed with the said modification. The suit is also restored to file. The court below will allow the 6th defendant to bring in necessary amendments to the plaint consequent on the transposition as above and to proceed with the suit in accordance with law. The original plaintiffs, when transposed as supplemental defendants will definitely have a right to file appropriate written statement and to contest the suit if they so choose. The C.R.P. is disposed of as above.