MOHANLAL MOTILAL SEVAK Vs. BHIKHABHAI HIMATLAL SEVAK

JUDGEMENT

(1.) The appellant in this appeal has applied for leave to withdraw the appeal. Respondent No. 2 has made this Civil Application for transposing him as the appellant in case the appellant is permitted to withdraw the appeal.

(2.) Mr. K. C. Shah who appears for the appellant has vehemently opposed the application made by respondent No 2 for transposing him as the appellant. In order to appreciate the rival contentions raised by the parties it is necessary to state a few facts. The plaintiff appellant is the son of the brother of defendant No. 1 and defendant No. 2 respondent No. 1 and respondent No. 2 respectively. The plaintiff appellant filed the suit for partition of the joint family property. The learned Trial Judge held that the suit property belonged exclusively to defendant No. 1 (respondent No. 1) and dismissed the suit. The plaintiff has challenged that decree in this appeal. If the plaintiff is allowed to withdraw the appeal the finding recorded by the learned Trial Judge that the suit property exclusively belongs to defendant No. 1 will also operate against defendant No. 2 and defendant No 2 will be precluded from contending that the suit property is the point family property and claiming his share therein. Therefore if respondent No. 2 (defendant No. 2) is not transposed as appellant and if the appellant plaintiff is allowed to withdraw the appeal defendant No. 2 would be very seriously prejudiced in as much as he would be bound by the decree passed by the Trial Court and would not be in a position to challenge the finding recorded against him. Such a situation does not obtain in ordinary suits and anneals hilt it does obtain in a suit for partition of joint family properties and such other suits where all the parties are like plaintiffs because in such a suit a defendant is not necessarily interested in defending himself against the plaintiffs claim. He may as well support the plaintiff and claim his share without filing a separate suit for the purpose. The rights of the plaintiffs and the defendants in a partition suit are so intermixed and intertwined that any action on the part of an appellant or a plaintiff may unduly prejudice a defendant or defendants. In such a case interests of justice require that a respondent who is likely to be unduly prejudiced by the withdrawal of the appeal should be transposed as an appellant and should be permitted to proceed with the appeal so that he gets relief to which he is entitled on merits.

(3.) In Edulji Muncherji Wacha v. Vullebhoy Khanbhoy and Others I. L. R. (1878) 7 Bombay 167 the plaintiff had filed a suit for taking accounts of the partnership firM and had joined to that suit 21 defendants. He thereafter applied to the Court for leave to withdraw the suit or in the alternative he prayed that the suit might be dismissed. Out of 21 defendants 10 defendants supported the plaintiffs application for withdrawal or dismissal of the suit. Two defendants objected to the application for withdrawal and applied under sec. 22 of the Civil Procedure Code 1877 for trans posing them as plaintiffs. The Court granted their application. While granting that application it was observed that a partnership suit is a suit of a peculiar character and that the parties to such a suit do not stand to each other precisely in the same relation as parties to suits generally. Next it has been observed in that decision that each of the parties to a partnership suit however he may be formally ranked is really in turn plaintiff and defendant and in both capacities he comes before the Court for the adjudication of his rights relatively to the other partners which the Court endeavours to determine by its decree. What has been observed by the High Court of Bombay in regard to a partnership suit applies in our opinion with equal force to a suit for partition where also each one of the parties to the suit however he may have been ranked is plaintiff in his turn claiming his own share. If in the instant case respondent No. 2 is not transposed as appellant respondent No. 1 would walk away without any let or hindrance with the entire property and for aught we know the appellant might have colluded with him.