ORDER
S.J. Mukhopadhaya, A.C.J.
1. Defendant No. 3 petitioner has challenged the order dated 23rd February, 2005 passed in Partition Suit No. 153 of 2002, whereby and whereunder, the learned Sub-Judge-IX, Ranchi, while rejected the petition, filed by defendant No. 3-petitioner under Section 23 of the Hindu Succession Act, 1956 read with Order VIII, Rule 11(d) and Order XIV, Rule 2(B) of the Code of Civil Procedure, has also allowed the petition, filed by the defendant/2nd and 4th respondents under Order I, Rule 10(2) of the Code of Civil Procedure for transposing them as plaintiffs in the suit, in question.
2. Before deciding the issue, as raised in the writ petition, it is necessary to notice the relationship in between the petitioner and respondents. The plaintiff/1st respondent, Juthika Das Gupta, wife of late Paritosh Das Gupta, is the mother of defendant No. 3/petitioner and other defendant/ 2nd, 3nd and 4th respondents.
3. The plaintiff/1st respondent filed Partition Suit No. 153 of 2002 in the Court of learned Sub-Judge, Ranchi, against her one daughter and three sons (all defendants), praying therein, for a decree for partition of the suit properties, claiming 1/5th share in the said suit property and prayed for appointment of Pleader Commissioner to allot separate Takhta to her (plaintiff).
4. The case of the plaintiff/1st respondent is that the suit property is the joint family property of the plaintiff and defendants. According to the plaintiff, her husband (late Paritosh Das Gupta) had purchased the suit property in the year, 1966 in his own name and thereafter, constructed house and other structures over the same. Said Paritosh Das Gupta died on 5th October, 1994, leaving behind the plaintiff as his widow, one daughter and three sons, being his legal heirs and representatives. It has been further alleged that after the death of Paritosh Das Gupta, a dispute arose amongst the parties as defendant No. 3/petitioner is in possession of more than 500 sq. ft., out of the total constructed portion, measuring 1825 sq. ft, over the suit property and the plaintiff is facing difficulty in accommodation and is in acute financial crisis and that the plaintiff is entitled for 1/5th share in the suit property.
5. Defendant No. 3/petitioner filed written statement and contested the suit. He also filed a separate petition under Section 23 of the Hindu Succession Act, 1956 read with Order VIII, Rule 11 (d) and Order XIV, Rule 2(b) of the Code of Civil Procedure on 2nd February, 2005, praying therein, to dismiss the suit, filed by the plaintiff/1 st respondent, on the ground that the suit property is a dwelling house in which the plaintiff, being the Hindu female, can not claim partition, in view of bar contained in Section 23 of the Hindu Succession Act, The plaintiff filed rejoinder to it and alleged that the objection has been preferred by defendant No. 3/petitioner only with a view to delay the suit. 2nd and 4th respondents (two other sons of the plaintiff) also filed their rejoinder to the petition, filed by defendant No. 3/petitioner and prayed to reject the objection.
6. A separate petition under Order I, Rule 10(2) of the Code of Civil Procedure was filed by defendants/2nd and 4th respondents on 16th February, 2005, praying therein, to transpose them as plaintiffs to the suit. Both the aforesaid petitions were taken up together and by the impugned order dated 23rd February, 2005, while the learned Sub-Judge-IX, Ranchi, allowed the petition, preferred by defendants/2nd and 4th respondents under Order I, Rule 10(2) of the Code of Civil Procedure and transposed them as plaintiffs to the suit, rejected the petition, preferred by defendant No. 3/petitioner under Section 23 of file Hindu Succession Act read with Order VIII, Rule 11(d) and Order XIV, Rule 2(b) of the Code of Civil Procedure.
7. Learned counsel for defendant No. 3/petitioner submitted that a suit for partition at the instance of female heir, being not maintainable in view of bar under Section 23 of the Hindu Succession Act, 1956, there was no occasion for the learned Court below to allow the petition, preferred by the defendants/2nd and 4th respondents under Order I, Rule 10(2) of the Code of Civil Procedure.
8. There is no dispute that Section 23 of the Hindu Succession Act, is a special provision in respect to dwelling house. The said section restricts the right of a female heir to claim partition of the family dwelling house, so long as the male heirs do not choose to effect partition of the same. But it expressly recognises the right of such female heir to reside in such house. The restriction to claim partition of dwelling house is until the male heirs choose to divide their respective shares therein. But in a case where male heirs choose to divide their respective shares, the bar imposed on female heir to claim partition of the dwelling house cannot be made applicable.
9. In the present case, defendant No. 3/petitioner filed a petition under Section 23 of the Hindu Succession Act, 1956 and prayed to dismiss the suit for partition, in view of bar under Section 23 of the Hindu Succession Act, which was opposed by two male heirs i.e. 2nd and 4th respondents, who filed rejoinder to the petition, filed by defendant No. 3/petitioner and prayed to reject the petition. The defcndants/2nd and 4th respondents i.e. two male heirs also choose to divide their respective shares as they filed petition under Order I, Rule 10(2) of the Code of Civil Procedure for their transposition as plaintiffs to the suit. The Court has jurisdiction to strike out or add parties at any stage of the proceedings either upon or without application of either party under Order I, Rule 10(2) of the Code of Civil Procedure, as quoted hereunder :
10. Suit in name of wrong plaintiff.-(1)….
(2) Court may strike out or add parties.–The Court may at any stage of the proceedings, either upon or without the application of either party and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court, may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.
10. The power to strike out or add parties can be exercised at any stage of the proceedings even before issues are framed. In this respect one may refer to a decision of the Supreme Court in the case of Razia Begum v. Sahebzadi Anwar Begum, . The expression “at any stage of the proceedings” is very clear. It means that at any stage of the proceedings till the final decree is passed in the suit, if the Court concerned comes to the conclusion that a person ought to have been joined and whose presence before the Court is necessary to enable the Court to completely adjudicate and settle all the questions, it can order to implead or transpose such person. Under this Rule a person may be added as a party to the suit only when he ought to have been joined as a plaintiff or defendant or is not joined so or when, without his presence, the question in the suit can not be completely decided. However, no party can be added so as to introduce a new cause of action and/or to alter the nature of the suit. Under Sub-rule (2) of Rule 10 of Order I of the Code or Civil Procedure, the Court has the power to transfer a defendant to the category of plaintiff. This can be done by the Court either suo motu or on the application of any of the defendants, if the defendants’ claim is founded on the same cause of action and the plaintiff agrees such transposition.
11. So far as the present case is concerned, admittedly in absence of the male heirs as plaintiffs, the partition suit could not have been decided completely. By transposing the defendants/2nd and 4th respondents as plaintiffs to the suit, the Court has neither introduced any new cause of action nor has altered the nature of the suit. The Court having power under Sub-rule (2) of Rule 10 of Order I of the Code of Civil Procedure to transfer a defendant to the category of plaintiff, I find no ground to interfere with the impugned order dated 23rd February, 2005, passed by the learned Sub-Judge-IX, Ranchi, in Partition Suit No. 153 of 2002, if the application of the defendants/2nd and 4th respondents for their transposition as plaintiff to the suit has been allowed with agreement of the plaintiff. After transposing the defendants/2nd and 4th respondents as plaintiffs to the partition suit, there was no occasion for the learned Court below to reject the suit on the ground of bar under Section 23 of the Hindu Succession Act, 1956. There being no merit, this writ petition is hereby dismissed.