B. M. DEVAIAH Vs. C. P. MUTHANNA

JUDGEMENT

(1.) The subject suit in O.S.No.98/1986 is for a decree of dissolution of Partnership Firm and for the rendition of accounts; petitioner happens to be the first defendant; first respondent happens to be the second defendant and second respondent is the plaintiff; a Preliminary Decree for dissolution of the Firm is entered on 31.08.1990; the enquiry as to rendition of accounts & mesne profits is stated to be pending; at this stage, the plaintiff moved a memo seeking leave of the Court below for withdrawal of the suit and the same is rejected on 29.08.2016.

(2.) Petitioner moved the subject application under Order I Rule 10(2) although the right provision is Order XXIII Rule 1A of the Code seeking his transposition as the plaintiff since, the original plaintiff wanted to withdraw the suit by filing application under Order XXIII Rule 1; pursuant to the Preliminary Decree in question there was FDP in which a warrant of arrest has been issued against the first respondent herein; his challenge thereto in Writ Petition, in Writ Appeal & later in SLP has been dismissed; the request for transposition having been opposed by the respondents herein, the learned trial judge vide order dated 07.09.2016 a copy whereof is at Annexure-A has rejected the request; that is how, this writ petition has arisen.

(3.) After service of notice, the respondents having entered appearance through their counsel resist the writ petition contending that: there is no identity of the claim of the petitioner in the Written Statement with that in the plaint; the petitioner has not filed the Counter Claim; plaintiff being the dominant litus, can seek the withdrawal of the suit and such an application is very much pending; there is another kindred comprehensive suit in O.S.No.557/2012 filed by the first respondent wherein petitioner being the first defendant can workout his remedy which he wants to achieve by the intended transposition; so contending, both the learned advocates appearing for the respondents press for the dismissal of the writ petition.