JUDGMENT
S.B. Sinha, J.
1. This revision application is directed against an order dated the 28th June, 1985, passed by the Additional Subordinate Judge, 3rd Court, Munger, in Title Suit No. 95 of 1979 whereby and where under the plaintiff was permitted to withdraw the suit.
2. In view of the point involved in this case, it is not necessary to state the facts of the case in details. The facts of the case lie in a very narrow compass. One Jagannath Chaudhary instituted Title Suit No. 95 of 1979 in the Court of the Subordinate Judge, 1st Court, Munger inter alia, for a declaration that the dee d of gift dated the 25th July, 1979, executed in favour of defendant No. 1 Smt. Ranjana Devi (opposite party No. 1) was void and be set-aside and for a further declaration that the defendant first party had derived no title thereto. The said Jagannath Chaudhary died on the 3rd April, 1981, and his widow Annapurana Devi was substituted in his place, On the 23rd April, 1985 Annapurna Davi filed an application under Order XXIII, Rule 1 of the Code of Civil Procedure for withdrawal of the suit. In the said application, it was inter alia, stated that no fraud was practised in the matter of the execution of the aforementioned deed of gift and it was further stated that the same was executed by her husband (the original plaintiff) Jagannath Chaudhary out of his own free will with regard to his one-third share.
3. According to the petitioner who was defendant No. 4 in the court below, the said application for withdrawal of the suit was exclusive and did not represent the true state of affairs. However, before any order could be passed on the said petition, the aforementioned Annapurna Devi died on the 2nd May, 1985. On the 24th June, 1985, the petitioner filed an application for being transposed to the category of the plaintiff. It was further stated that the purported vakalatnama allegedly executed by Smt. Annapurna Devi was a forged and fabricated document as she had been a ling for a long time and was not in her senses to execute any vakalatnama. The said petition was directed to be put up on the next date fixed. However, on the 28th June, 1985, the lawyer appearing on behalf of the aforesaid Annapurna Devi who, as stated hereinbefore, died in the meanwhile filed the said application for withdrawal of the suit along with the affidavit of one Brahmanand Jha in which it was alleged that the deceased Annapurna Devi was his own aunt and on whose asking he was working Karpordaz. According to the petitioner, the impugned order was passed without calling out the suit and hearing the dependants and without hearing and/or passing any order on the application for transposition filed on behalf of the petitioner.
4. In this case, a counter affidavit has been filed on behalf of the opposite party Nos. 1 and 2. According to the said opposite party, no fraud was committed by Jagannath Chasdhary in the matter of execution of the aforementioned deed of gift dated the 75th July, 1979. It has further been submitted that the petition dated the 23rd April, 1983, filed by Smt. Annapurna Devi for withdrawal of the suit was genuine.
5. Mr. Debendra Narain Sinha, learned Counsel appearing for the petitioner, in support of the civil revision application has raised three questions. According to the learned Counsel, the learned court below could not have passed the impugned order without hearing the petitioner and without giving any notice to the defendants with regard to the said application for withdrawal of the suit. The learned Counsel secondly contended that as the original plaintiff died on the 2nd May, 1985, her lawyer ceased to have any authority whatsoever to represent her and, in this view of the matter, the impuged order dated the 28th June, 1985, which was passed at the behest of the counsel for the plaintiff must be held to be wholly illegal. Mr. Sinha lastly contended that in view of the express provision contained in Order XXIII, Rule 1-A, Civil Procedure Code as inserted by the Amendment Act of 1976, it was obligatory on the part of the learned court below to transpose the petitioner to the category of the plaintiff.
6. Mr. Ashok Kumar Keshri, learned Counsel appearing for the opposite party Nos. 1 and 2, however, submit ed that, in view of the fact that the application for withdrawal of the suit was filed by the aforementioned Annapurna Devi on the 23rd April, 1985, and she having die 1 on the 2nd May, 1985, the learned court below was competent to pass the impugned order and the counsel must also be held to have the requisite authority to press the said application. Mr. Keshri further submitted that in any event the petitioners application for transposition in terms of Order XXIII, Rule 1-A of the Civil Procedure Code being prematura, the petitioner cannot make any grievance in relation to the subject-matter. He submitted that, if the petitioner files a fresh application in terms of Order XXIII, Rule 1-A of the Civil Procedure Code, now the same may be considered on its own merits by the learned Counsel below.
7. From the impugned order dated the 28th June, 1985, passed by the learned court below, it is evident that before passing the said order, he did not hear the other defendants, including the petitioner. From a persual of the said order, it is further evident that the counsel on behalf of the aforementioned Annapurna Devi accepted that she died on the 2nd May, 1985, but pleaded that, as it was not possible to adduce evidence on her behalf in view of her death, the application for withdrawal filed by her should be accepted. The learned court below without assigning any reason whatsoever has acceded to the aforementioned prayer and permitted the suit to be withdrawn. Order XXIII, Rule 1 of the Civil Procedure Code postulates that when an application for withdrawal of suit is filed, the court has to apply its mind with regard to the contents of the said application.
8. In terms of Order XXIII, Rule 1(4) of the Civil Procedure Code if the plaintiff withdraws from a suit without the permission referred to in Sub-rule (3), he becomes liable for payment of such cost as the court may award. It is, therefore, evident that before a court grants permission to the plaintiff to withdraw the suit, it must apply its mind to the facts of the case particularly when such withdrawal is opposed by one of the defendants who is vitially interested in the subject matter of the suit. Further in the instant case it is evident that the said application for withdrawal of the suit was not necessitated because of any defect therein but while praying for withdrawal of the suit the substituted plaintiff, namely, Smt. Annapurna Devi made out a case which was completely contradictory to and inconsistent with the case made out in the original plaint. If the suit was permitted to be withdrawn on the basis of such application, the same would certainly be beneficial to respondents 1 and 2 inasumuch as admissions have been made therein with regard to the genuineness of the deed of gift executed by the original plaintiff although the Dane was the subject-matter of the suit.
9. In this view of the matter, the impugned order passed by the learned court below cannot be sustained. In terms of Order III, Rule 4 of the Civil Procedure Code a counsel, who has the authority, may be held to have the power to withdraw the suit unless it is shown that the pleader has acted contrary to his instruction or against the interest of the client or is otherwise guilty of misconduct. However, it is well known that the appointment of a lawyer continues till the death of his client. Only in certain exceptional circumstances, as for example, curing of some defects in the suit, etc., a lawyer may act in pursuance of the authority in spite of the death of his client.
10. However, in the instant case, in my opinion, there cannot be any doubt whatsoever that after the death of Smt. Annapuran Devi the authority of her lawyer also came to an end and, as such he had absolutely no power to press the application for withdrawal of suit filed on behalf of Smt. Annapurna Devi.
11. By reason of the Civil Procedure Code (Amendment) Act, 1976, a new provision by way of Order XXIII, Rule 1-A has been inserted. The said provision reads as follows:
Where a suit is withdrawn or abandoned by a plaintiff under Rule I, and a defendant apples to be transposed as a plaintiff under Rule 10 of Order I, 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.
12. In a recent decision in the case of Md. Muzahid v. John Wilson Zedak and Anr. 1988 PLJR 857, it was held as follows:-
(7) There are decisions of Supreme Court and different High Courts including the Court (to notice a few Hulas Rai Baij Nath (supra), R. Ramamurthi Aiyar v. Rajeshwarrao , Basudev Narayan , Debt Chand v. Prabhu Lal AIR 1926 All. 582, Loke Natu Sahay v. Radha Govind Saha AIR 1926 Cal 184, which lay down when a defendant may be transposed as plaintiff if the latter files application under Order, XXII, Rule 1(1). In a suit for partition, if the plaintiff wants to withdraw the suit, the defendant if he wants to prosecute the suit, should be transposed as plaintiff. The same is the position with regard to suit for accounts by a partner. There is no difficulty in appreciating this proposition as in such suits, the position of all the parties in that of plaintiff. Again if a preliminary decree has been passed, the plaintiff should not be allowed to withdraw the suit, and if a right has already vested in defendant, the plaintiff shall not be allowed to withdraw the suit.
(8) It will thus, be noticed that in spite of the language of Order XXIII, Rule 1(1) as interpretated by the Supreme Court in M/s. Hulas Rai Baij Nath’s case Courts held that in all cases right of plaintiff to withdraw a suit cannot be said to be absolute. These decisions were rendered before the amendment of the Code in 1976.
In the said decision, it was further held as follows:-
(17) Rule 1 was substituted by Act, 104 of 1976. In the old rule, both the words ‘withdraw’ and ‘abandon’ were used. In the new Rule 1, in Sub-rule (1) of Rule 1, the word used is ‘abandon’ and Sub-rule (3) of Rule 1, the word used is ‘withdraw’. Rule 1-A applies to both cases of abandonment and withdrawal. The right of plaintiff to abandon the suit under Rule 1(1) has been left unfettered, but in a case where court is of opinion that substantial question is to be decided as against any of the other defendants, the defendant who may apply for transposition ought to be transposed as plaintiff and the original plaintiff ought to be transposed as defendant. The right of plaintiff to walk out of a suit by abandoning it or withdrawing from suit has been curtailed. Before insertion of Rule 1-A, there was no question of transposing a defendant as plaintiff, if the dispute was inter se defendants. But now it is specifically provided that court shall take into consideration whether there is substantial question to be decided between the defendant inter se. For all these reasons with respect, I am unable to accept the interpretation of Rule 1-A as held in” Jethiben’s case.
In the said decision, it was further held that when a prayer for transposition may be allowed will depend on the facts of each case.
13. The aforesaid Rule 1-A of Order XXIII, was inserted to meet the circumstances where the defendant may be allowed to be transposed as plaintiff. Where the suit is withdrawn or abandoned by the plaintiff, it is obvious that the said provision was inserted in order to facilitate the defendant to get the adjudication of his right.
14. However, reading the provision of Order XXIII, Rule 1 and Order XXIII, Rule 1-A of the Civil Procedure Code together. I am of the view that an application for transposition filed by a defendant cannot be said to be premature if no order has been passed on the said application. On a plain reading of Order XXIII, Rule 1-A of the Civil Procedure Code, to my mind, an application can be filed even when the plaintiff expresses his intent to withdraw or abandon the suit by way of filing an application or otherwise. As a matter of fact, at that stage, the Court may not only pass the necessary order on such application for transposition filed on behalf of the defendants or any of them, but would be in a position to consider as to whether in such a situation, the plaintiff himself should be transposed to the category of defendant or not.
15. In any event, in view of the fact and as I have held hereinbefore, that the impugned order was wholly illegal and without jurisdiction and is, thus liable to be set aside, it would be open to the learned court below to consider the application for transposition filed on behalf of defendant No. 1 petitioner at the appropriate stage. In this view of the matter, the order dated the 28th June, 1985, is set aside and the civil revision application is allowed. The learned court below is hereby directed to pass a fresh order in accordance with law. However, in the circumstances of this case, there shall be no order as to costs.