ORDER
K. Govindarajan, J.
1. The first respondent/plaintiff filed the suit in O.S. No. 356 of 1996 on the file of the Sub Court, Namakkal, impleading the first defendant therein and the respondents 2 to 4 as defendants 3 to 5. The said suit was filed for partition of plaintiff’s 1/12 share in Survey No. 533 and for injunction restraining the defendants 3 to 5 from putting up any new or additional constructions in S. No. 533/1, In the plaint, it is specifically stated that in an extent of 3.33 acres and 23 cents, shown in the ‘A’ schedule to the deed of acknowledgment of partition, a partition was held between the plaintiff and the second defendant. According to the plaintiff/first respondent, a sub-division was effected. The land in Survey No. 533 was sub-divided into three portions. Survey No. 533/1 measuring 5 acres 56 cents belongs to the plaintiff and defendants 1 and 2. It is also specifically stated that the plaintiff and defendants 1 and 2 together completely hold Survey No. 533/1, which is the suit property. The first defendant filed written Statement and paid the court-fee for division of his share in the property. When the case was posted on 23.4.1998, the first and sixth defendants entered into compromise and a compromise memo was filed and it was recorded on 28.4.1998. Immediately on 24.4.1998 the matter was posted for counter on 28.4.1998. On 28.4.1998 counter was filed and the matter was posted for orders on 30.4.1998, in the application filed by the petitioner/first defendant in I.A. No. 612 of 1998; with a request to transpose himself as the plaintiff. On 30.4.1998 that application was rejected by the court below on the ground that the first defendant has already been given up and so the petition cannot be maintained. On the same day, the court below passed the decree as per the terms of the compromise memo filed by the plaintiff and other defendants. Aggrieved against the order refusing to transpose the petitioner as the plaintiff, the petitioner has filed the above revision.
2. In view of the abovesaid admitted facts, now we have to decide whether the petitioner is entitled to be transposed as plaintiff, in spite of the fact that the decree has been passed on the basis of the compromise decree.
3. The first respondent filed the suit for partition specifically admitting the share of the petitioner/ plaintiff in the suit property. In such circumstances, can he abandon the suit and the compromise decree entered into with others by giving up the petition, without even amending the plaint.
4. While dealing with the similar issue, in Basudeb Narayan v. Shesh Narayan , the learned Judge has dealt with the right of the plaintiff and has held as follows:
The principles which can be deduced out of the cases aforesaid are clearly the following: (1) The plaintiff under Sub-rule (1) of Rule 1 of Order 23 of the Code has a right to withdraw a suit at any stage, (2) that such a right of the plaintiff is limited to the extent that it does not result in defeating a right which has already vested in the defendant, such a right may have become vested in the defendant either on account of a compromise or a concession or a decree or an award or similar circumstances, (3) that in a partition suit every defendant is virtually in the position of a plaintiff; his claim being founded on a claim similar to that of the plaintiff; and (4) that Order 23, Rule 1, Sub-rule (1) of the Code applies even to a partition suit subject to the abovesaid limitation.
5. The Apex Court while dealing with similar issue in R. Ramamurthi v. V. Rajeswarao has held as follows:
Even if the plaintiff does not wish to prosecute that suit or wishes to withdraw it, the defendant or defendants can ask for being transposed to the array of plaintiff to have his or their share partitioned.
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It has further been emphasised that in a partition suit the plaintiff is not wholly dominus litis and even on the assumption that Section 3 confers a privilege or an option on the shareholder who is a defendant in a suit for partition, the plaintiff is debarred from defeating the exercise of that privilege or option by resorting to the device of withdrawing a suit under Order 23, Rule 1.
From the abovesaid decisions it is very clear that the plaintiff has no absolute right to withdraw the suit ignoring the other share-holders. In this case, the plaintiff has specifically accepted the share of the petitioner/first defendant, and with the intention of avoiding the first defendant, he was given up and they have entered into a compromise with the other defendants though the first defendant has claimed his right and paid the court fee.
6. The learned Counsel for the respondent has submitted that since the petitioner has not challenged the endorsement under which he was given up and also the decree, he cannot maintain the petition, and, consequently, he cannot also maintain this revision. The learned Counsel for the respondent has also submitted that the application in I.A. No. 12 of 1998 was filed only after he was given up and so he has no locus standi to file such an application, as, on the date of filing the application he is not a party. I am not able to agree with the said submission. It cannot be construed that the courts have no power to prevent the illegalities and the abuse of process of the court. Merely on the basis of technicalities the respondents cannot prevent the petitioner from getting his legal rights which is admitted by the plaintiff/first respondent. Even when the plaintiff wants to withdraw the suit in the interest of justice, the court below should have suo motu directed to transpose the first defendant/petitioner as the plaintiff on the basis of the facts and circumstances of the case. For such suggestion, support is gained in Maddanappa v. Chandramma , wherein the learned Judges have held as follows:
Now regarding the second point, this objection is purely technical. The plaintiff sued for partition of the suit properties upon the ground that they were inherited jointly by her and by the first defendant and claimed possession of her share from the other defendants who were wrongfully in possession of the properties. She also alleged that the first defendant did not co-operate in the matter and so she had to institute the suit. The first defendant admitted the plaintiff’s title to half share in the properties and claimed a decree also in her own favour to the extent of the remaining half share in the properties. She could also have prayed for her transposition as a co-plaintiff and under Order 1, Rule 10(2), C.P.C. the court could have transposed her as a co-plaintiff. The power under this provision is exercisable by the court even suo motu. As pointed out by the Privy Council in Bhupendra v. Rajeswar, 58 I.A. 228 : A.I.R. 1931 P.C. 162, the power ought to be exercised by a court for doing complete justice between the parties.
7. In this case only after filing the application for transposing the first defendant as plaintiff, the decree has been passed, Had the court below properly appreciated the application and allowed the same, the question of passing a decree would not have arisen. On that basis the learned Counsel for the petitioner has submitted that there is no need to file a separate application or appeal to set aside the decree, as the decree is a dependent or subordinate one to the order impugned in this revision. While dealing with the similar issue, the learned Judges of the Delhi High Court, in S.K. Bharadwaj v. M.L. Gupta , has held as follows:
When leave is refused to the defendant to appear and defend a suit under Order 37, C.P.C, the effect of the refusal of leave to appeal and defend is that, the allegations in the plaint by a deeming provision stand admitted. The allegations in the plaint being admitted, a decree has to follow. This means that the decree follows as a consequence of the earlier order of refusal to grant leave to appear and defend. In my opinion, when a subsequent Order, even if it be a decree, is a consequential order to an earlier order, the earlier order is set aside the latter order must also fail and directions to that effect have to be given.
8. T. Sathidev, J., in Madanlal v. P. Padma Bai (1987)1 M.L.J. 1, has taken the similar view. In that case, the defendant filed a petition to grant leave to defend the suit. To allow that petition a condition was imposed. Challenging that revision was filed. In the revision, the respondent took a stand that since the condition was not complied with, the suit has been decreed and so the revision cannot be sustained. The learned Judge disagreed with the said defence and allowed the revision and restored the suit with the direction to dispose of the same on merits.
9. It cannot be said that the compromise decree passed by the court below cannot be also challenged in these proceedings. Admittedly, the said decree was obtained behind the back of the petitioner, though admittedly his right is involved. Such an action of the plaintiff, and the other defendants cannot be held other than fraudulent one.
10. While dealing with similar issue, the Chief Justice of Andhra Pradesh High Court, Subba Rao, C.J., in Rangiah v. Peddireddi, 1956 An.W.R. 776 : A.I.R. 1957 A.P. 330, has held as follows:
The next question is what is the effect of the appellate order on the final decree that was made by the first court. It is a well-settled principle of law that certain orders and decrees which are subordinate and dependent upon earlier orders and decrees could only remain in force so long as the order or decree on which they were dependent are not feversed or superceded. See: Sharma Purshad Ray Chowdry v. Hurro Purshad Ray Chowdry 10 M.I.A. 208 (P.C.) and Varadarajan v. Muthu Venkatapathi Reddi (1953)1 M.L.J. 148 : A.I.R. 1953 Mad. 587. The question, therefore, is whether the final decree made is dependent for its validity on the order refusing to extend the time. If the learned District Munsif did not refuse to extend the time he could not have made the final decree. If the order refusing to extend the time was set aside in appeal, the final decree could not obviously stand, for it was made on the basis of the order which was subsequently set aside. In this view, when the District Court set aside the order refusing to extend the time under Order 34, Rule 2, Civil PC, the final decree which has been made on the basis of the wrong order, being a dependent one, fell with it.
11. The Apex Court while dealing with similar issue in S.P. Chengatvaraya Naidu v. Jagannath , has held as follows:
It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree – by the first court or by the highest court – has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings.
12. While dealing with the scope of a decree obtained by collusion, the learned Judges of the Apex Court in R.G. Shinde v. State of Maharashtra have held as follows:
It would be obvious that A.K. Patil, Ex-chairman of the defunct committee with a view to get over that impediment and to enable newly admitted 2000 members after December 17, 1991, set up More, a co-director and Mule, alleged to be his friend, got filed the first writ petition and obtained a direction to conduct election following its heels got filed second writ petition with a format of legal process but immediately Patil intervened and appeared on the very date of admission put forth consent order and obtained the order from the court to conduct election as per the provisional list existing as on June 30, 1992 and got issued the direction to the Collector with the mandate to conduct election in accordance with that list’. It was specifically alleged that Patil colluded with More and Mule, abused the process of the court, played fraud on the court and obtained minutes order by consent without knowledge to any member of the society. In the absence of any denial of the allegations and in the light of the background of the case the necessary inference to be unerringly deduced would be that the consent order is a collusive and fraudulent order; made format of due process of law but obtained orders contrary to the statutory mandate of Rule 4(1) of the Rules. It could thus be seen that none of the members of the society had any opportunity to know or to oppose the consent orders. Thereby the necessary conclusion would be that a collusive order obtained by abuse of the process of the court by playing fraud on the court, became foundation to conduct elections to the Managing Committee of the Society circumventing the mandate of Rule 4(1) of the Rules.
In Nagubai Ammal v. B. Sharma Rao , this Court held that collusion in judicial proceedings is a secret arrangement between two persons that the one should institute a suit against the other in order to obtain the decision of a judicial Tribunal for some sinister purpose. In such proceedings, the claim put forward is fictitious, the contest over it is unreal, and the decree passed therein is a mere mask having the similitude of a judicial determination and worn by the parties with the object of confounding third parties. This was reiterated in Rup Chand Gupta v. Raghuvanshi Pvt. Ltd. , in which this Court held that the collusion is an improper act done by an improper refraining from doing an act, for a dishonest purpose. In these two cases this Court set aside the collusive decree obtained by the parties, collusion, thus, is the found a tion to put forward a format of judicial process and a pretext of contest which in effect unreal and farce and the decree or order obtained on its basis is a mere mask having similitude of judicial determination with the object of confounding third parties. The offending order is vitiated by collusions and formed foundation for election to the committee of the society.
13. Raju, J., as he then was, while dealing with the case in which the suit was originally filed and withdrawn as not pressed and thereafter a suit was filed without impleading the petitioner before this Court and obtained an order and, in such circumstances, the learned Judge, in Registrar, M. S. University v. Suhura Beevi Educational Trust , has held as follows:
I have carefully considered the submissions of the learned Counsel appearing on other side. I would consider it appropriate to deal with the claim of the plaintiff/1st respondent about the right of the plaintiff in absolute terms to give up any party to the suit at any stage of the proceedings and withdraw the suit as not pressed against any one of the parties on record. Reliance has been placed by the learned Counsel for the first respondent, on Order 23, Rule 1, C.P.C., according to which, at any time after the institution of a suit, the plaintiff may, as against all or any of the defendants abandon his suit or abandon a part of his claim or withdraw his suit.
14. The learned Judge in the abovesaid decision has further held that without even consequential amendments, which will directly affect the right of the parties, should not be allowed to give up or abandon a party at any stage of the suit. The learned Judge in this connection has held as follows:
The prayer and relief sought for in the suit O.S. No. 9188 of 1992, which has been already adverted to, would go to show that the declaration of minority status was specifically sought for with reference to the Trust as also M.G.R. Law College, Kanyakumari with particular reference to the provisions of the Tamil Nadu Private Colleges (Regulation) Act, 1976 and the Rules made thereunder as also Statute 21 of Chapter XXVI of the Law of University, which is stated to be the same as the one applicable to the Madurai Karnaraj University. In the context of such a prayer involving also the 3rd defendant-University, perhaps the suit could not have been maintained without making the University as a party defendant to the proceedings in the court below. Though it is the right of the plaintiff to choose the party respondent of defendants to a cause to be instituted or to give up or abandon a party at any stage of the suit or proceedings, such things cannot be allowed to be done without consequential amendment of pleadings. It is preposterous to claim a relief against a party or a relief, in terms, which will directly affect the right of a party, but yet claim a right also either not to implead such a person or authority who may be directly affected as a party or give up or abandon such a person once earlier made at party to the proceedings. In such, cases, in the absence of consequential amendments and deletion of the relief prayed and relief sought for as well as the allegations pertaining to such a party, who is not impleaded or given up subsequently the proceedings will suffer the vice of not having before the court the necessary parties and so on such ground alone the proceedings Will have to fail without there being any enquiry or adjudication on the merits of the claim. The court in such cases cannot also pretend to be either ignorant or obvious to such patent manoeuvres and manipulations or itself allow it to be made in the presence of the 3rd defendant as a party to the suit Q.S. No. 9188 of 1992, the petitioner could, not be permitted to have the declaration of the nature claimed in the suit or in the injunction application without violation of the procedure of law as well as the course of justice.
From the above, it is clear that the respondents tried to get rid of the plaintiff by giving up though his right in the property in question has been specifically admitted in the plaint. When the right of the petitioner is admitted in the plaint and also the petitioner has paid the court-fee with respect to his share, the court below should not have permitted to abandon the case by giving up the petitioner and also enter into a compromise with the other defendants, ignoring the petitioner’s right.
15. The learned Counsel for the petitioner has further submitted that this Court shall not vary or reverse the decree or order against which an appeal lies either in the High Court or in a court subordinate thereto. The said provision has to be applied in the normal course. In view of the abovesaid decided cases, it is clear that if the decree is a dependent or subordinate decree, the court can set aside the same and direct the court below to decide it on merits.
16. While referring to the powers of this Court under Section 115 of the Code of Civil Procedure, the Full Bench of this Court in Ramayya v. Venkanraju has held as follows:
It has been a well-established convention, and that rests both on principle and convenience, that a preliminary point of this nature should be raised at the beginning. Otherwise, the court’s time would have been unnecessarily wasted. I cannot speaking for myself, tolerate this situation of lengthy arguments on merits for hours or days and at the fag end the learned Counsel for the respondent raising a preliminary point as regards the maintainability of the appeal itself. In the present case, this question of the maintainability of the appeal was not even raised in the court below. If raised, the appellant would have withdrawn his appeal and filed a revision to the High Court directly against the order of the District Munsif.
In the circumstance, this is if a fit and proper case for us to set aside the order of the learned District Munsif of Tenali in exercise of our revisional jurisdiction. The powers of the High Court under Section 115, C.P.C, are very wide. Under that section the High Court may call for the record of any case which has been decided by any court subordinate to such High Court and in which no appeal lies thereto and make such order in the case as it thinks fit. Under this section, therefore, the High Court may of its own motion call for any record or may do so at the instance of a party. It does not preclude the High Court from exercising its powers of revision ‘suo motu,’ if the other conditions laid down in the section are satisfied. A Divisional Bench of this Court laid down the scope of the corresponding section of the Civil Procedure Code as early as 1881 in ‘Andrew Anthony v. The Rev. J.M. Dupont, 4 Mad, 217. The learned Judges observed: “The question then arises whether this Court cannot interfere under Section 622, C.P.C, without an application from a party. In all probability the party aggrieved has abstained from action owing to the action taken by the Judge. There is nothing to limit the power conferred by Section 622 to cases in which there is an application by a party’.
This view has never been questioned and indeed there are innumerable decisions wherein the High Court has interfered ‘suo motu’ against orders of the subordinate tribunals when an appeal filed was held to be not maintainable.
17. In view of the above discussions, the order of the court below impugned in this revision is set aside and I.A. NO. 612 of 1998 is ordered. Consequently, the decree passed in O.S. No. 356 of 1996 on the basis of the compromise entered into between the parties is also set aside and the court below is directed to dispose of the suit on merits and in accordance with law. This revision is ordered accordingly. No costs. Consequently, C.M.P. No. 8535 of 1998 is closed.