DONALD MICHAEL RICHARD Vs. MAGLINE PAUL

JUDGEMENT

(1.) This appeal is preferred against the decree and judgment dated 28.02.2015 in O.S. No.302/2010 on the file of Principal Sub Court, Thiruvananthapuram.

(2.) The suit was filed for getting a partition of the plaint schedule properties. The contention raised by the plaintiff is that, he is entitled to half share over the property. Defendants are the mother and other siblings of the plaintiff. Later on, the plaintiff went away from the suit when it was listed for trial. So, the lower court has allowed transposition of second defendant as additional second plaintiff and proceeded with the suit. The additional second plaintiff was allowed to give oral evidence as PW1 and on hearing both the parties, passed a preliminary decree, against which, this appeal is preferred.

(3.) Heard the appellant and respondents Nos. 2 and 3, who entered appearance through learned counsel Sri. P.B. Krishnan. As far as respondent No.1 and 4, a paper publication was issued in the matter of condoning delay, but not turned up. On going through the impugned judgment prima facie it appears that the Lower Court has overlooked the principles governing transposition of a party. Order XXIII deals with the withdrawal and adjustment of suits. Order XXIII Rule 1A is extracted below for reference.