AHMED ABDUL SALEEM Vs. AHMED ABDUL SAMEER

JUDGEMENT

(1.) This revision arises out of the order- dated 5-7-2000 in O.S.No. 13 of 1998 on the file of the Court of Junior Civil Judge, Armoor.

(2.) First respondent herein filed the suit against the appellants and respondents 2 to 9 for partition of his share in the plaint schedule property. Revision petitioner, who are defendants 1 to 9,11 and 12, filed a written statement admitting the claim of the first respondent/plaintiff. On behalf of respondents 2 to 9, who are defendants 10 and 13 to 19, respondents 13 to 19 filed a separate written statement contesting the claim of the first respondent/plaintiff. Issues were framed on 6-11-1998. Thereafter the suit was being adjourned and was posted finally to 21-7-2000 for trial. On I.A.No. 104 of 2000 filed by the fourth respondent herein, who is defendant No. 14 in the suit, the suit was advanced to 5-7-2000 from 21-7-2000. On 5-7-2000 first respondent (plaintiff) filed a memo that he does not wish to prosecute the suit. Therefore, the suit was dismissed without costs. Questioning the said order of dismissal, this revision is preferred by defendants 1 to 9,11 and 12.

(3.) The contention of the learned Counsel for the revision petitioners is that the Court below was in error in advancing the suit on a petition filed by the fourth respondent (Defendant No. 14) even without ordering notice of that petition to the revision petitioners. He contended that since the suit is for partition, revision petitioners are also in the position of plaintiffs, and when the first respondent (plaintiff) did not wish to prosecute the suit, if notice of the petition for advancement and the memo of withdrawal of the suit are given to the revision petitioners they would have got themselves transposed as plaintiffs and continued the suit, and since the suit was withdrawn by the plaintiff without giving notice to the revision petitioners by filing a memo on 5-7-2000, to which date the suit was advanced, revision petitioners were put to a great disadvantage. He, relying on B. Pattabhiramaiah vs. B. Copal Krishna contended that the procedure followed by the Court below in advancing the suit and dismissing it on that date without notice to the revision petitioners is erroneous and is liable to be set aside. The contention of the learned Counsel for the respondents is that since the first respondent did not wish to prosecute the suit, a memo was filed withdrawing the suit, and if the revision petitioners feel that they have a share, their remedy is to file a separate suit for partition and contended that since revision petitioners did not claim separation of their shares in the property, they cannot question the order of dismissal by way of revision. He contended that the decision relied on by the learned Counsel for the revision petitioners has no application to the facts of this case.