JUDGMENT
B.P. Das, J.
1. Heard Shri A.K.Mohapatra, learned counsel for the petitioner. None appears for the opposite parties in spite of service of notice.
2. This revision application arises out of the order dated 10.8.2001 passed in T.S.No. 58 of 1998 by which the Civil Judge (Senior Division), Jajpur, has allowed the application filed by the plaintiff under Order 23, Rule 1 of the Code of Civil Procedure (C.P.C in short) for withdrawal of the suit and rejected the application filed by defendant No. 2, the present petitioner, under Order 23, Rule 1-A, C.P.C. to transpose him as plaintiff.
3. O.P.No. 1 filed the aforesaid suit against the present petitioner and O.P.Nos. 2 to 4 praying for partition of the suit schedule property. Defendant No. 1-O.P.No. 2-Radhanath Jena filed another suit, i.e. T.S.No. 244/1997, for partition of the above suit property as well as certain other properties. As it appears, by order dated 14.9.2000 passed in Civil Revision No. 16 of 2000, this Court directed the trial Court to dispose of T.S.No. 244/ 1997 within six months. For the aforesaid reason, the plaintiff-O.P.No. 1-Jadunath Jena filed a petition under Order 23, Rule 1, C.P.C. for withdrawal of T.S.No. 58/1998. At the same time, defendant No. 2, the present petitioner, filed a petition objecting to the prayer for withdrawal of the aforesaid suit T.S.No. 58 of 1998, sayings that the plaintiff has filed the present suit for partition of the joint family property of the plaintiff and defendant Nos. 1 and 2 as per the decree passed in T.S.No. 105/1995 by the Civil Judge (S.D.), 1st Court, Cuttack. According to him, the suit properties are the homestead lands along with residential building and valuable trees standing thereon. Defendant No. 2 has filed his written statement claiming l/3rd share in the suit properties. According to the present petitioner-defendant No. 2, the plaintiff in connivance with defendant No. 1 filed an application not to proceed with the suit and for withdrawal of the same and another petition acceding to the counter claim made by the defendant No. 1. Apprehending that the withdrawal of the suit would ultimately deprive defendant No. 2 of his share has prayed for transposing him to the category of the plaintiff and the plaintiff to the category of defendant.
4. The trial Court after hearing both the parties has come to observe that as per the provision of Order 23, Rule 1, C.P.C. the plaintiff at any time after institution of the suit may abandon his suit as against all or any of the defendants and also any part of his claim with the leave of the Court and accordingly allowed the petition for withdrawal of the suit. So far as the application for transposition is concerned, the trial Court held that the Court cannot compel the plaintiff to proceed with the suit and allow the defendant to complain against the plaintiff as because there is no affinity and identity of interest between the plaintiff and defendant No. 2 in the present suit, and rejected the application as there is no sufficient reason to transpose the plaintiff to the category of defendant and vice versa. During the hearing of the aforesaid application, defendant No. 2 placed reliance on the principle decided in Smt. Ajita Debi v. Mustt. Hussenara Begum, AIR 1977 Calcutta 59, in support of his case. The said principle, as quoted in the impugned order, is extracted hereunder:
“Withdrawal and adjustment of suit – It is not permissible unless the Court is satisfied about adjustment of suit wholly or in part against all defendants. Transposition of parties should be allowed for complete adjudication upon questions involved in the suit.”
The trial Court, however, simply brushed aside the above proposition with the observation that the principle decided in the aforesaid decision is almost different from the present suit.
5. Admittedly the plaintiff has filed the suit for partition of the property where the other defendants (defendant Nos. 1 and 2) are the coparceners. It is submitted by the learned counsel for the petitioner-defendant No. 2 that the suit property, which is the subject-matter of dispute in T.S.No. 244/77, is different as only a part of the disputed land is the subject-matter of T.S.No. 58/1998, for which the scope and ambit of both the suit are different.
6. Order 23, Rule 1-A of the C.P.C. provides as follows :
“When transposition of defendants as plaintiffs may be, permitted – Where a suit is withdrawn or abandoned by a plaintiff under Rule 1, and a defendant applies to be transposed as a plaintiff under Rule 10 of Order 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.”
So, when an application for transposition of defendants as plaintiffs is made, the question to be decided is as to whether the applicant has a substantial question to be decided as against any of the other defendants.
7. In a suit for partition of immovable property by a joint coparcener, even the defendants have the same right to claim partition and it is not material as to in what manner the parties are arrayed as plaintiff or defendants in the suit. Even the defendants can be transposed as plaintiffs and can continue the suit in their interest. Thus, in such kind of suit no absolute right can be held in favour of the plaintiff of withdrawing a suit under Order 23, Rule 1, C.P.C. (See AIR 1987 Rajasthan 177) Manohar Singh v. Mst. Sardar Bai). In the aforesaid case, the Rajasthan High Court referred to a decision reported in AIR 1973 SC 643 : R. Ramamurthi v. Rajeshwararao, wherein the Apex Court had placed reliance on the following observations made in Tukaram Mahadu Tandel v. Ramchandra Mahadu Tandel, AIR 1925 Bombay 425 :
“But there are other and wider considerations-which lead me to hold that plaintiff could not have withdrawn so as to defeat the defendants’ claim. It is relevant to point out that in a partition suit a defendant seeking a share ‘ is in the position of a plaintiff and one plaintiff cannot withdraw without the permission of another (Order XXIII, Rule 1(4).”
In the case of Ajita Debi’s case (supra), it was also clearly held in para 12 thus :
“………. where an application has been made under Order XXIII, Rule 1 the plaintiff is entitled to withdraw his suit and the defendants cannot be hard to oppose such prayer. But the said legal right of the plaintiffs to withdraw the suit is not unconditional or absolute. The Court can only exercise its jurisdiction in favour of the plaintiffs where the interests of the defendants are not adversely affected in any way if the plaintiffs are allowed to withdraw the suit. To illustrate, in a partition suit by a sole plaintiff against defendants, the former cannot be allowed to withdraw the suit inasmuch as a defendant having a cause of action against such plaintiff, may be allowed to be transposed as plaintiff in the suit……..”
The Court then placed reliance on the decision in Bhupendra Narayan Sinha v. Rajeshwar Prosad, AIR 1931 PC. 162, wherein it was held that transposition of a party under Order 1, Rule 10, C.P.C. should be allowed where it is necessary for a complete adjudication upon the questions involved in the suit and to avoid multiplicity of proceedings.
8. From the impugned order, I find that the trial Court has not applied its judicial mind properly to the provisions of Order 23, Rule 1 -A, C.P.C. and has also not dealt with the objection raised to the withdrawal of the suit and the grounds taken by the defendant No. 2 praying for transposing him to the category of plaintiff in order to pursue the litigation. In view of the judicial pronouncements on the subject noted above, I am inclined to hold that the impugned order cannot be maintained and is liable to be set aside. Accordingly, the impugned order is set aside. The trial Court is directed to re-hear the questions regarding withdrawal of the suit and the transposition of defendant No. 2 as plaintiff and dispose of the said applications in accordance with law by passing a reasoned order keeping in view the judicial pronouncement indicated above.
9. The civil revision is allowed with the observations made above. No cost.