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2015 DIGILAW 219 (ORI)

Bayani Das v. Basanti Agasti

2015-03-31

S.PANDA

body2015
JUDGMENT : S. Panda, J. Petitioner in this application has challenged the order dated 23.02.2012 passed by learned Addl. Civil Judge (Sr. Division), Balasore in C.S. No. 888 of 2000-I rejecting the applications filed by her under Order, 23 Rule 1(4) and under Order, 1 Rule, 10(2) of the Code of Civil Procedure to transpose her as plaintiff and to permit her to proceed with the suit for partition. Petitioner is the defendant No. 13 who contests the suit. 2. The facts leading to the present case as narrated in the application are as follows:- One Sudhakar Panigrahi as plaintiff filed C.S. No. 888 of 2000 for partition and other consequential relief. After the death of the original plaintiff Sudhakar Panigrahi the present opposite party no. 1 being the daughter substituted as plaintiff in the suit and her two brothers were impleaded as defendant nos. 26 and 27 who are present Opp. Party Nos. 30 and 31. The present petitioner is representing the branch of Balakrushna as per the genealogy. She is the daughter of Pranakrushna, son of Balakrushna. Defendant Nos. 1, 2, 13, 14, 20, 21, 25, 28 to 31 have filed their written statements in the suit. Out of them defendant No. 14 to 31 are purchasers, of the suit property. In their written statement defendant Nos. 1 and 2 have stated that Pranakrushna died much prior to the year 1956 leaving behind his two daughters namely Pagili (defendant no. 12) and Bayani (defendant No. 13) for which defendant Nos. 12 and 13 are not entitled to get any share. They have further stated that due to dissension between the Balakrushna and Jasobanta, they were separated from each other by way of amicable partition prior to Current Settlement and they were possessing their shares separately and separate record of rights has also been recorded separately in their names. 3. Defendant No. 13 has stated in her written statements that the suit property has been partitioned between the plaintiff and defendant Nos. 1 to 13 much prior to Current Settlement and accordingly parties were possessing their separate shares and major settlement record of rights has also been recorded in the name of defendant No. 13 separately in respect of her share of lands and the plaintiff has no manner of right, title, interest on her shares. Defendant No. 14 is the purchaser from the father of defendant No. 13. Defendant No. 14 is the purchaser from the father of defendant No. 13. He has also admitted in his written statement regarding partition between the Balakrushna and Jasobanta. 4. During pendency of the suit the original plaintiff entered into compromise on 03.05.2002 with defendant Nos. 6, 9, 11 and on 03.08.2002 with defendant Nos. 21 and 25 and on 13.09.2002 with defendant Nos. 1, 2, 5 to 8 and on 03.04.2006 with defendant Nos. 26 to 31. In view of the above aforesaid compromise the Opposite party No.1 filed an application on 17.11.2011 for withdrawal of the suit. Petitioner has filed her objection challenging the maintainability of the petition. She has denied the assertions made in the petition and stated specifically therein that plaintiff has already examined and cross-examined and she has filed the application to withdraw the case after eleven years from the date of filing of the suit. A valuable right accrued in favour of the defendant no. 13 after examination and cross-examination of the plaintiff in the suit. Hence she is seeking the relief of the court to transpose herself as plaintiff accordingly she has filed applications under Order, 23 Rule, 1(4) and under Order, 1 Rule, 10(2) of the Code of Civil Procedure to transpose her as plaintiff and to permit her to proceed with the case. 5. Plaintiff has filed her objection to the aforesaid application wherein it was contended that the claim of defendant No. 13 is not identical and similar with the claim of the plaintiff, rather the claims are both rival and against each other. Defendant no. 13 can only be transposed as plaintiff only when she accepted the plaint case and without such acceptance she cannot be transposed as plaintiff. As the nature of claim will be changed and the compromise entered into by the parties will be affected and further evidence necessary it will be a denovo trial. The court below after hearing the parties rejected the application by impugned order. 6. Learned counsel for the petitioner contended that since the suit is for partition and the position of plaintiff and defendants are almost similar and trial has commenced the court below should have allowed the application of the petitioner by permitting her to transpose as plaintiff instead of observing that a separate suit can be filed by the petitioner. 7. 6. Learned counsel for the petitioner contended that since the suit is for partition and the position of plaintiff and defendants are almost similar and trial has commenced the court below should have allowed the application of the petitioner by permitting her to transpose as plaintiff instead of observing that a separate suit can be filed by the petitioner. 7. Learned counsel appearing for the opposite party plaintiff however supported the impugned order submitted that since the plaintiff has no grievance against the defendants with whom the compromise was entered into and she does not want to proceed with the suit the court below rightly rejected the application of the petitioner. The claim of the present petitioner who is defendant No. 13 totally contradicted to the claim of the plaintiff. As she has not accepted the plaint case the court below rightly passed the impugned order hence interference with the said order does not warrants. 8. In view of the contention raised by the learned counsel for the parties and after going through the record the following facts are admitted. The suit is for partition, the trial has commenced and plaintiff was examined and cross examined by the defendants. Though the original plaintiff entered into compromise with some of the defendants and the contesting defendant Nos. 12 and 13 representing one of the branch of the genealogy therefore after examination and cross-examination of the plaintiff, a valuable right accrued in favour of the defendant No. 13 for which the application was filed to transpose herself as plaintiff to avoid multiplicity of proceeding and to restrict the abuse of process of court. 9. Law is well settled that the plaintiff and defendants have same right to claim partition. It is not material as to what manner the parties are arrayed as plaintiffs and defendants in the Suit. Even the defendants can be transposed as plaintiffs and can continue the suit if they feel that the plaintiffs are not continuing the suit in their interest and the plaintiffs have no absolute right to withdraw the suit and proceeding. It is not material as to what manner the parties are arrayed as plaintiffs and defendants in the Suit. Even the defendants can be transposed as plaintiffs and can continue the suit if they feel that the plaintiffs are not continuing the suit in their interest and the plaintiffs have no absolute right to withdraw the suit and proceeding. This Court in the case of Gokulananda Jena V. Jadunath Jena and others reported in 2002(II) OLR 453 and in the case of Mahitosh Sinha V. Shyamapada Sinha and others reported in 2005 (Supp.) OLR 958 held that in a suit for partition of immovable property the plaintiff has no absolute right to withdraw a suit. While rendering the said decision this Court also taken into consideration the decision of the Privy Council in the case of Bhupendra Narayan Sinha V. Rajeshwar Prasad reported in A.I.R. 1931 PC 161. In the said decision it was held that transposition of a party under Order, 1 Rule, 10 of the Civil Procedure Code should be allowed where it is necessary for a complete adjudication upon the questions involved in the suit and to avoid multiplicity of proceedings. 10. The trial court has taken into consideration the case reported in AIR 1968 SC 111 , M/s. Hulas Rai Baij Nath V. Firm K.B. Bass and Co. wherein the Apex Court has held that in a suit for rendition of accounts by principal against his agent the principal is entitled to withdraw the suit even at the stage when issues have been framed and some evidence has been recorded but no preliminary decree for rendition of accounts has yet been passed. The defendant cannot insist that the plaintiff must be compelled to proceed with the suit. 11. The plaintiff has filed an application for withdrawal of the suit. The defendant has filed an application to transpose her as plaintiff to continue the suit and claimed partition as valuable right accrued in her favour after examination of the plaintiff in the suit. It is not disputed that the suit is for partition and the position of plaintiff and defendants are almost similar in a suit for partition. Therefore the principle decided by the Apex Court in the case of M/s Hulas Rai Baij Nath (supra) is not applicable to the present case. It is not disputed that the suit is for partition and the position of plaintiff and defendants are almost similar in a suit for partition. Therefore the principle decided by the Apex Court in the case of M/s Hulas Rai Baij Nath (supra) is not applicable to the present case. To avoid multiplicity of proceeding and in case the withdrawal of the suit is allowed it amounts to abuse the process of Court. Hence, for the interest of justice the court below should have allowed the application of the petitioner. 12. In view of the discussions made hereinabove as there is error apparent on the face of the record this Court in exercising the jurisdiction under Article 227 of the Constitution of India sets aside the impugned order and allows the application filed by defendant No. 13. Further this Court directs the court below to proceed with the suit and dispose of the same in accordance with law. Accordingly the writ petition is allowed.