ORDER : Transposition of some of the respondents in the counter claim who are the plaintiffs in the main suit for partition, on the death of the sole counter claimant/1st defendant has come up for consideration in this revision petition. 2. This revision petition is filed under Article 227 of the Constitution of India against the order dated 22.04.2022 in I.A.No.521 of 2021 in (counter claim) O.S.No.323 of 2011 on the file of the Court of II Additional District Judge, Visakhapatnam filed under Order 23 Rule 1A, Order 1 Rule 10, Order 22, Rule 3 and Order 6 Rule 17 r/w Section 151 CPC and Rule 28 of Civil Rules of Practice to permit respondents no.1 to 4 in the claim petition i.e. the petitioners no.2 to 5 herein to amend the claim petition being the legal heirs of their father the original claim petitioner/D-1 in suit for transposing them as claimants 2 to 5 as their father died on 03.04.2021 pending the adjudication of the suit and the counter claim and further to permit the petitioners to carry out the consequential following amendments: “(A) The word ‘died’ is to be mentioned after the name of claimant in short cause title, long cause title. (B) The claimant has to be shown as claimant number “1)” and we the plaintiffs 1 to 4 have to be shown as claimants 2 to 5 in short cause title and long cause title. (C) In claim petition paragraph III and in cause of action paragraph it is to be amended that “The “1st claimant” in the place of claimant wherever it occurs. “Claimants 2 to 5” in the place of respondents 1 to 4 “Respondents 1 to 6 in the place of respondents 5 to 10. “the claimants 2, 4 & 5 “ in the place of respondents 1, 3 & 4. “Claimants 2 to 5 and 1st respondent” in the place of respondents 1 to 5. “Claimants 2 to 5” in the place of respondents 1 to 4 “Respondents 1 to 6 in the place of respondents 5 to 10. “the claimants 2, 4 & 5 “ in the place of respondents 1, 3 & 4. “Claimants 2 to 5 and 1st respondent” in the place of respondents 1 to 5. “Respondents 2 & 3” in the place of respondents 6 & 7 “Respondents 4 to 6” in the place of respondents 8 to 10 “1st respondent” in the place of 5th respondent “Respondents 2 to 6” in the place of respondents 6 to 10 “Respondents 4 & 5” in the place of respondents 8 & 9 (d) In the prayer paragraph in the place of claimant it is to be stated “claimants” and in the place of my it is to be stated as “our” and in the prayer (a) in the place of claimant it is to be stated as 1st claimant and in the place of 5th respondent it is to be stated as “1st respondent” and in prayer (b) in the place of claimant it is to be stated as 1st claimant and in the place of 5th respondent it is to be stated as “1st respondent” and in the place of respondents 6 & 7 it is to be stated as “respondents 2 & 3” and in the prayer (c) in the place of 6 & 7 respondents it is to be stated as respondents 2 and 3 and in the place of respondents 8 to 10 it is to be stated as “4 to 6” and in prayer (e) and (f) in the place of respondents 6 to 10 it is to be substituted as “2 to 6” as otherwise they will be put to serious loss and hardship.” 3. The 1st petitioner is the 1st defendant in the suit filed for partition by the petitioners 2 to 5. They are the plaintiffs no.1 to 4. The respondents no.1 to 3 herein are D-2 to D-4. The respondents no.4 to 6 are D-5 to D-7. 4. In the original suit in O.S.No.323 of 2011 filed for partition, D-1 filed a counter claim seeking the following reliefs: a) for cancellation of the gift settlement deed dated 26.08.2006 executed by the claimant in favour of the 5th respondent. The respondents no.1 to 3 herein are D-2 to D-4. The respondents no.4 to 6 are D-5 to D-7. 4. In the original suit in O.S.No.323 of 2011 filed for partition, D-1 filed a counter claim seeking the following reliefs: a) for cancellation of the gift settlement deed dated 26.08.2006 executed by the claimant in favour of the 5th respondent. b) For cancellation of GPA cum sale agreement dated 15.12.2006 executed by the claimant and the 5th respondent in favour of the respondents 6 & 7 c) For consequential relief of cancellation of subsequent documents executed by the respondents 6 & 7 in favour of the respondents 8 to 10 in respect of the plaint schedule properties; d) For consequential relief of recovery of possession of the plaint schedule properties. e) For mandatory injunction directing the respondents 6 to 10 to remove the unauthorized constructions including the boundary wall around the item Nos.2 and 3 of the plaint schedule properties and if the respondents 6 to 10 failed to do so, the Hon’ble Court may be pleased to permit the claimant to remove the same at the expenses of the respondents 6 to 10. f) For consequential relief of permanent injunction restraining the respondents 6 to 10 from ever interfering with the peaceful possession and enjoyment of the claimant over the plaint schedule properties. g) For costs of the claim petition. 5. In the counter claim, the parties are arrayed as follows: 1. Kari Nookanna - petitioner/(D1) And 1. Garikina Saddamma 2. Kari Nooka Raju 3. Vasupalli Simhachalam 4. Vasupalli Konda - respondents no.1 to 4/Plaintiffs no.1 to 4 5. Kari Adibabu 6. Chipulla Srinu 7. Vasupalli Polamma 8. Bade Geetha 9. Bade Narasinga Rao 10. Gurrala Henry James -respondents no.5 to 10/defendants no.2 to 7 6. On 03.04.2021, the claimant/D-1 died. On 09.12.2021, when the suit was pending reserving the judgment, the petition in I.A.No.521 of 2021 was filed. 7. The petitioners no.2 to 4/plaintiffs in O.S.No.323 of 2011 contended that the claimant died leaving behind him the petitioners no.2 to 5 and the 1st respondent herein/D-2 as his legal heirs and that since the sole claimant died, the petitioners 2 to 5 are required to be transposed as claimants no.2 to 5 for complete adjudication of the matter and consequentially the amendments sought shall also be permitted. 8. 8. D-2 to D-4 who are respondents no.1 to 3 herein remained ex parte in the suit. 9. R-4 to R-6/D-5 to D-7 filed counter resisting the petition stating briefly as follows: Though the petitioners no.2 to 5 are aware of the death of their father on 03.04.2021, neither the parties nor their counsel informed to the Court about the death of D-1. If either a plaintiff or a defendant dies, steps shall be taken only by the plaintiff to bring the legal representatives. On death of a party, the legal representatives of the deceased party shall be brought on record within 90 days and if steps are not taken within 150 days from the date of death of the party, the suit abates and as such the suit is abated and the counter claim is also abated on 30.08.2021. The written arguments were filed by the counsel for D-1 as if he was alive. It is also stated that since the plaintiffs and the respondent No.2 (sic 1st respondent/D-2) were already recorded, no LRs are to be added. No party should be added twice in the plaint and the claim petition since the father (the deceased) admitted that he sold the property and the same was also admitted by the plaintiffs, they cannot be transposed in the claim petition. The provisions of Order 23, Rule 1A has no application to the present case as the suit was already abated. They cannot step into shoes of the claimant and also for consequential amendments in the cause title. D-2 did not enter into witness box nor did he file written statement. No amendments can be permitted to a claim petition as it was dismissed and not restored and already abated. In view of the prayers made in the counter claim, the petitioners who are the plaintiffs in the suit cannot be transposed as claimants. With the above contentions, the counter is filed praying to dismiss the petition. 10. No amendments can be permitted to a claim petition as it was dismissed and not restored and already abated. In view of the prayers made in the counter claim, the petitioners who are the plaintiffs in the suit cannot be transposed as claimants. With the above contentions, the counter is filed praying to dismiss the petition. 10. After hearing both parties, the trial Court dismissed the petition mainly observing that the petitioners filed the suit for partition against their father and brother/D1 and 2 and the 3rd parties/D3 to 7 and when that court already framed certain issues basing on the pleadings of D1, the issues framed do not remain unanswered on account of the death of D1 since the right to sue survives on the surviving family members because D2 and the plaintiffs are his legal heirs are already on record; that the petitioners/plaintiffs cannot play the role of plaintiffs and the role of defendants as well; that the issues that were framed based on the counter claim filed by the first defendant will be answered in the suit itself and they will not be answered separately; and that therefore, the petitioners cannot be permitted to come on record as the claimants 2 to 5. 11. Having aggrieved by the same, the revision petition is filed. 12. The learned counsel for the petitioners no.2 to 5 (the deceased claimant is shown as 1st petitioner) contended that a counter claim in any suit is treated as an independent suit for all practical and technical purposes and therefore on the death of the sole claimant, no judgment can be pronounced without there being some legal representative stepping into his shoes. He further submitted that just because the legal representatives of the deceased are the plaintiffs in the suit, they cannot be treated as legal representatives insofar as the counter claim is concerned as it has its own existence as a separate proceeding and therefore it is necessary to permit the legal representatives of the deceased to take steps. He further submitted that just because the legal representatives of the deceased are the plaintiffs in the suit, they cannot be treated as legal representatives insofar as the counter claim is concerned as it has its own existence as a separate proceeding and therefore it is necessary to permit the legal representatives of the deceased to take steps. He further submitted that since all the legal representatives of the deceased claimant are already on record as respondents in the counter claim shown as R-1 to R-5, the matter does not get abated and it is only a mere formality to inform to the court that the legal representatives are already on record and further more since the relief claimed by the petitioners is only to get themselves transposed as claimants, the bar of limitation does not arise. The learned counsel further placed reliance on the decision of the Madras High Court in the case of A.Mohamed Sulaiman and another Vs A.Ameena Beevi (died) and others, CRP (PD) No.21 of 2011 dated 22.03.2013, wherein at para 22 held as follows: “22. In Karuppayammal and another Vs. S.Ramalingam Pillai and others ( 2000 (1) L.W. 593 ) the learned single Judge of this Court held that the counter claim by a defendant can be maintained only as against plaintiff and not as against the defendant. The facts of the said case reveal that the subject matter suit is one for recovery of possession and for mesne profits. In the said suit, a third party filed an application seeking to implead himself as third defendant and also prayed for a declaration of his title to the suit property and for direction to the defendants 1 and 2 therein to deliver possession of the same. Thus, the learned judge found that the defendant cannot seek counter claim against co-defendant. In this case, the subject matter suit is for partition and therefore the status of the parties in this suit cannot be equated with the status of the parties in other suits with other reliefs. It is well settled that in a partition suit the defendant can be considered to be a person suing. This position has been reiterated by this court in a decision reported in 1998 (1) MLJ 137 (C.Kasinathan Vs. N.Athiappan Servai and Others). It is well settled that in a partition suit the defendant can be considered to be a person suing. This position has been reiterated by this court in a decision reported in 1998 (1) MLJ 137 (C.Kasinathan Vs. N.Athiappan Servai and Others). Therefore, when a defendant in a partition suit can be considered to be a person suing, then a counter claim can also be made against such defendant by another co-defendant. In fact, when a counter claim is made, the person viz., the defendant who makes such claim becomes the plaintiff insofar as that claim is concerned and person against whom such claim is made becomes the defendant. Sub-clause (2) of Rule 6A of Order 8 CPC makes it clear that such counter claim shall have the same effect as a cross suit. Even if the plaintiff in the said suit discontinues or the suit itself is stayed or dismissed, still the counter claim can be proceeded with as contemplated under Order 8 Rule 6D . Therefore a combined reading of Order 8 Rule 6A(2) with Order 8 Rule 6D makes it abundantly clear that the counter claim in a partition suit can be made even against the co-defendant. (Underlining in the above quoted decision is used by this Court to draw attention to the most relevant part of the decision). 13. Therefore, he submitted that a counter claim in a partition suit can be made as against a co-defendant and as it independently survives irrespective of the suit in which it was filed, there is need to have some human agency to represent the deceased claimant and therefore transposition of the respondents no.1 to 4 therein as claimants no.2 to 5 is legal. He further submitted that moreover there is no conflict of interest in the claim insofar as the deceased sole claimant and the proposed claimants no.2 to 5. 14. The learned counsel for the respondents no.4 to 6 supported the observations of the trial Court in its order for dismissing the petition. The learned counsel submitted that the petition is belated and without filing ancillary applications to reopen the matter to condone the delay in filing the petition to bring the legal representatives and also the petition praying to set aside the abatement of the proceedings. The learned counsel submitted that the petition is belated and without filing ancillary applications to reopen the matter to condone the delay in filing the petition to bring the legal representatives and also the petition praying to set aside the abatement of the proceedings. It is also submitted by him that since the deceased died after conclusion of the arguments and before pronouncement of the orders as can be seen from the observations of the trial Court in the order by saying that the petition was filed when the matter was reserved for judgment, there is no need to bring the legal representatives also and a judgment can be pronounced. 15. Now, the question is whether the proposed claimants no.2 to 5 can be permitted to be transposed insofar as the counter claim is concerned. 16. There is no dispute about the date of the death of D-1 or the date of filing of the present petition. Therefore, it is clear that the present application is filed beyond 150 days from the date of death of D1, without being supported by any other application for condoning the delay and to get the abatement of the proceedings set aside. However, since the proposed legal representatives of the deceased are already on record in a different status, the proceedings do not get abated. In this regard, the learned counsel for the petitioners placed reliance on the decision of the Supreme Court in the case of Mahabir Prasad Vs Jage Ram and others, 1971(1) SCC 265 , wherein at para 7 held as follows: “7. Even on the alternative ground that Mahabir Prasad being one of the heirs of Saroj Devi there can be no abatement merely because no formal application for showing Mahabir Prasad as an heir and legal representative of Saroj Devi was made. Where in a proceeding a party dies and one of the legal representatives is already on the record in another capacity, it is only necessary that he should be described by an appropriate application made in that behalf that he is also on the record, as an heir and legal representative. Even if there are other heirs and legal representatives and no application for impleading them is made within the period of limitation prescribed by the Limitation Act, the proceeding will not abate. Even if there are other heirs and legal representatives and no application for impleading them is made within the period of limitation prescribed by the Limitation Act, the proceeding will not abate. On that ground also the order passed by the High Court cannot be sustained.” 17. In addition thereto, since the prayer is also made by the petitioners to get them transposed as claimants by invoking the provision under Order 23, Rule 1A CPC, for which the bar of limitation cannot be taken as a ground, the petition cannot be said to be not maintainable. Here, it is a case where the legal representatives of the (sole) deceased claimant being the respondents in the counter claim want to be transposed as the claimants and there is no conflict of interest between the deceased on one side and the proposed claimants on the other side insofar as the counter claim is concerned. In fact, they did not file any written statement to the counter claim filed by the deceased. The counter claim is against the other respondents. As such, on recognizing them as legal representatives of the deceased, transposing them as claimants is necessitated since they cannot continue to be the respondents to represent the interest of the deceased sole claimant. As such, the observation of the trial Court that the surviving members of the deceased D1 being already on record as the plaintiffs and D2, the petition is not maintainable is not correct because the status in the suit is different from the status in the counter claim. The further observation of the trial Court that the petitioners/plaintiffs cannot pay the role of the plaintiffs and the role of defendants is ex facie incorrect because the present application is filed for transposition in relation to the counter claim but not in relation to the suit. If the observation of the trial Court were to be correct, showing the plaintiffs in the suit as respondents in the counter claim also does not survive. Therefore, the reasons stated by the trial Court for dismissing the petition are unsustainable. Similar objections raised in the counter are also not sustainable. 18. Insofar as the suit is concerned, it is for the plaintiffs to get it recorded that all the legal representatives of the deceased D1 are already on record and therefore the suit can be disposed. Therefore, the reasons stated by the trial Court for dismissing the petition are unsustainable. Similar objections raised in the counter are also not sustainable. 18. Insofar as the suit is concerned, it is for the plaintiffs to get it recorded that all the legal representatives of the deceased D1 are already on record and therefore the suit can be disposed. Insofar as the counter claim is concerned, in view of the death of the sole claimant, it is necessary to allow the prayer sought in the petition. 19. As per Order 22, Rule 6 CPC, there would be no abatement by reason of death of either party between the conclusion of the hearing and the pronouncement of the judgment and the judgment can be pronounced notwithstanding the death and the judgment shall have the same force and fact as if it had been pronounced before the death took place. As such, the learned counsel for the contesting respondent submitting that there is no necessity to allow this application. However, it is not absolutely clear from the record that whether D-1 died after conclusion of the hearing. However, Order 22, Rule 6 CPC does not prohibit the legal representatives of the deceased party from being brought on record or showing them as already on record, though the party dies in between the conclusion of hearing and pronouncement of judgment. It only sanctifies the judgment passed even in the absence of the legal representatives of the deceased brought on record in the circumstances stated therein. 20. As such, for all the reasons stated above, the order impugned in the revision petition is liable to be set aside. All the consequential amendments are very much required consequent to allowing the main prayer. 21. In the result, the revision petition is allowed by setting aside the impugned order dated 22.04.2022 in I.A.No.521 of 2021 in (counter claim) O.S.No.323 of 2011 on the file of the Court of II Additional District Judge, Visakhapatnam and the said petition is allowed as prayed for. Since the matter was already reserved for judgment, after observing the necessary legal formalities in pursuance of the order, the trial Court is directed to dispose of the matter within a period of one month from the date of receipt of the copy of this order. There shall be no order as to costs. Since the matter was already reserved for judgment, after observing the necessary legal formalities in pursuance of the order, the trial Court is directed to dispose of the matter within a period of one month from the date of receipt of the copy of this order. There shall be no order as to costs. Miscellaneous Petitions, if any pending, in this Civil Revision Petition, shall stand closed.