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2000 DIGILAW 858 (AP)

AHMED ABDUL SALEEM v. Ahmed Abdul Sameer

2000-11-16

C.Y.SOMAYAJULU

body2000
C. Y. SOMAYAJULU, J. ( 1 ) THIS revision arises out of the order- dated 5-7-2000 in O. S. No. 13 of 1998 on the file of the Court of Junior Civil Judge, armoor. ( 2 ) FIRST respondent herein filed the suit against the appellants and respondents 2 to 9 for partition of his share in the plaint schedule property. Revision petitioner, who are defendants 1 to 9,11 and 12, filed a written statement admitting the claim of the first respondent/plaintiff. On behalf of respondents 2 to 9, who are defendants 10 and 13 to 19, respondents 13 to 19 filed a separate written statement contesting the claim of the first respondent/plaintiff. Issues were framed on 6-11-1998. Thereafter the suit was being adjourned and was posted finally to 21-7-2000 for trial. On i. A. No. 104 of 2000 filed by the fourth respondent herein, who is defendant No. 14 in the suit, the suit was advanced to 5-7-2000 from 21-7-2000. On 5-7-2000 first respondent (plaintiff) filed a memo that he does not wish to prosecute the suit. Therefore, the suit was dismissed without costs. Questioning the said order of dismissal, this revision is preferred by defendants 1 to 9,11 and 12. ( 3 ) THE contention of the learned Counsel for the revision petitioners is that the Court below was in error in advancing the suit on a petition filed by the fourth respondent (Defendant No. 14) even without ordering notice of that petition to the revision petitioners. He contended that since the suit is for partition, revision petitioners are also in the position of plaintiffs, and when the first respondent (plaintiff) did not wish to prosecute the suit, if notice of the petition for advancement and the memo of withdrawal of the suit are given to the revision petitioners they would have got themselves transposed as plaintiffs and continued the suit, and since the suit was withdrawn by the plaintiff without giving notice to the revision petitioners by filing a memo on 5-7-2000, to which date the suit was advanced, revision petitioners were put to a great disadvantage. He, relying on b. Pattabhiramaiah vs. B. Copal Krishna contended that the procedure followed by the Court below in advancing the suit and dismissing it on that date without notice to the revision petitioners is erroneous and is liable to be set aside. He, relying on b. Pattabhiramaiah vs. B. Copal Krishna contended that the procedure followed by the Court below in advancing the suit and dismissing it on that date without notice to the revision petitioners is erroneous and is liable to be set aside. The contention of the learned Counsel for the respondents is that since the first respondent did not wish to prosecute the suit, a memo was filed withdrawing the suit, and if the revision petitioners feel that they have a share, their remedy is to file a separate suit for partition and contended that since revision petitioners did not claim separation of their shares in the property, they cannot question the order of dismissal by way of revision. He contended that the decision relied on by the learned Counsel for the revision petitioners has no application to the facts of this case. ( 4 ) IT is no doubt true that in a suit for partition defendants are also in the position of plaintiff, in the sense that defendants also can seek separation of their Share in the property, which is the subject matter of the suit for partition. If the defendants in suit for partition do not seek separation of their share in the suit property, and admit the claim of the plaintiff for partition of his share, it is doubtful if the defendants can be said to be in the position of a plaintiff; because a plaintiff seeks some relief on the suit. When no relief is claimed by the defendant, like seeking separation of his or her share, and files a written statement admitting the claim of the plaintiffs, how can it be said that he is in position of a plaintiff? It is well known that when one of the several co-owners or co-sharers seeks partition of his share, the other co-owners or co-sharers can continue to be joint, or also may get separated. In the decision relied on by the learned Counsel for the revision petitioners defendants therein sought separation of their share in the property. In any event for disposal of this case the said question remains academic in nature, and will have no relevance, for the reason mentioned below, and so I am not going into the said questions. In the decision relied on by the learned Counsel for the revision petitioners defendants therein sought separation of their share in the property. In any event for disposal of this case the said question remains academic in nature, and will have no relevance, for the reason mentioned below, and so I am not going into the said questions. ( 5 ) THE fact that the suit was advanced from 21-7-2000 to 5-7-2000 on a petition in i. A. No. 104 of 2000 is admitted. Admittedly, notice of I. A. No. 104 of 2000 was not given to the revision petitioners. Rule 109 (2) of civil Rules of Practice and Circular Orders in A. P. , reads as under:"any party, who desires that the hearing may be advanced, may apply therefor by an Interlocutory application, of which notice shall be given to the other party. "principles of natural justice and judicial procedure require that the other side should have notice of proceedings filed into the court as the act of Court should prejudice none. Therefore, request for adjournment, or request for advancement of hearing made by one party should be made known to the other parties to the suit, so that the other side will have an opportunity to say what they have to on the said application. In this case, admittedly no notice of I. A, no. 104 of 2000, seeking advancement of the suit from 21-7-2000 to 5-7-2000, was given to the revision petitioners. Notice of the memo filed by the plaintiff withdrawing the suit also is not given to the revision petitioners. In the decision relied on by the learned Counsel for revision petitioners, it is held that grant of permission to withdraw that suit without notice to contesting defendants is without jurisdiction and if such permission is granted, revision under section 115 CPC is maintainable against the order of dismissal of the suit. Strictly speaking the said decision has no application to the facts of this case as revision petitioners are not the contesting defendants in the suit. Strictly speaking the said decision has no application to the facts of this case as revision petitioners are not the contesting defendants in the suit. In this case the suit is advanced without giving notice of the petition to all the parties to the suit, contrary to Rule 109 of Civil Rules of practice and the principles of natural justice and judicial procedure and notice of withdrawal of the suit was also not given to the revision petitioners, which according to the revision petitioners, caused prejudice to them. Therefore, the order of the trial Court passed on 5-7-2000, dismissing the suit is not sustainable and hence I hold that this revision is maintainable. Hence, the order under revision dismissing the suit as withdrawn, is set aside and the suit is ordered to be restored. The learned trial judge should give notice of restoration of the suit to the Counsel for the parties, and fix a date of hearing and give an opportunity of being heard to the revision petitioners on the memo of withdrawal of the suit filed by the plaintiff and then pass appropriate orders. ( 6 ) REVISION petition is ordered accordingly. No costs.