NEMURI SAYANNA Vs. NEMURI SRIHARI

JUDGEMENT

(1.) This revision is filed against the order in I.A.No.974 of 1992 in O.S.No.1789 of 1987 in the Court of the III Additional Judge, City Civil Court, Secunderabad allowing the petition filed by the second defendant to transpose himself as plaintiff in the suit The suit is filed by the plaintiff for partition. On 2-7-1992, the plaintiff has filed a memo stating that he is not pressing the suit. Thereupon on 4-8-1992 the learned Judge passed an order recording the memo and also noted that I.A.No.974 of 1992 is filed and posted the matter to 30-9-1992. On 30-9-1992 he passed the impugned order allowing I.A.No.974 of 1992. The impugned order reads as follows:

(2.) In this revision filed by one of the defendants, the learned counsel for the petitioner Sri P.S. Narayana contended that the moment the palintiff filed the memo abandoning the suit, it amounts to dismissal of the suit and thereafter the Court became functus officio and so it cannot pass the order allowing the petition to transpose the second defendant as a plaintiff. On the other hand, the contention of Mr. Venugopal,learned counsel appearingfor the second defendant is that the impugned order being a consent order cannot be challenged by way of revision.

(3.) Order XXIII Rule 1(1} of Civil Procedure Code says that at any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim. In this case, as stated above, the plaintiff has filed a memo on 2-7-1992 stating that he is not pressing the suit. Though the Court recorded the memo on 4-8-1992, it did not dismiss the suit since I.A. No.974 of 1992 was filed and was pending. Having perused the proceedings of the Court, copies of which have been filed by the learned counsel for the second defendant, I am satisfied with the contention of the learned counsel for the second defendant, who is transposed as plaintiff, that the proceedings have not been terminated on 2-7-1992 when the plaintiff filed memo in the lower court and were pending since I.A.No.974 of 1992 was filed in the Court. Rule 1-A of Order XXIII of Civil Procedure Code reads that where a suit is withdrawn or abandoned by a plaintiff under Rule1, and a defendant applies to be transposed as a plaintiff under Rule 10 of Order 1, the Court shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants. So even where a plaintiff withdraws or abandons the claim, the Court can consider the application filed by the defendant to transpose himself as the plaintiff. Having regard to the question that there is a substantial question to be decided against any other defendants, since this is a suit for partition and as second defendant has filed petition to transpose himself as the plaintiff and other parties did not have any objection, the Court passed the impugned order, which is a consent order. 1 agree with the contention that since it is a consent order, it cannot be challenged by way of revision. The Revision is, therefore, dismissed. No costs.