RAMKRISHNAN Vs. THANKA

JUDGEMENT

(1.) The revision petitioners are the defendants 1 and 2 and supplemental plaintiffs in O. S. No. 58/91 which is a suit for partition. They challenge the orders passed allowing I.A. Nos. 3988 & 3993/97 the prayers in which were for restoration of the suit for partition to file, and for transposing the 6th defendant as supplemental 6th plaintiff.

(2.) The learned counsel for the respondents placed reliance on O.23 R.1A of the Code of Civil Procedure to contend that where a plaintiff has abandoned a case as done in the present case, the defendant has a right to be transposed as a plaintiff and to proceed with the suit. According to the learned counsel for the revision petitioners O.23 R.1A cannot be called in aid after the disposal of the suit. It is also argued that O.9 R.9 of the CPC cannot be invoked by a defendant to the suit for restoration of the suit. The transposition sought for by the 6th defendant was resisted on the ground that the suit is no more alive.

(3.) O.23 R.1A of the CPC provides as follows: