KOMAL SINGH Vs. PHOOLABAI AND OTHERS

JUDGEMENT

(1.) With the consent of parties, the matter is heard finally.

(2.) Facts giving rise to filing of the writ petition briefly stated are that respondent No.1/plaintiff filed a suit seeking the relief of declaration of title and partition of her share in the suit property. Petitioner filed the written statement in which inter alia the objection was taken with regard to maintainability of the suit on the ground that the same is barred by res judicata. During the course of the suit, defendant No.1 sold the property to defendant No.3, therefore, defendant No.3 was also impleaded as party to the suit. The trial Court vide order dated 29 -07 -2010 rejected the application filed under Order VII Rule 11 of CPC. The aforesaid order was set aside in appeal and the matter was remanded to the trial Court to decide the matter afresh after recording the evidence vide order dated 30 -09 -2010. Plaintiff and defendant No.3 executed an agreement as per the version of petitioner and on the said basis the application under Order XXIII Rule 1 (1) of CPC was filed for withdrawal of suit against defendant No.3. The trial Court vide order dated 25 -04 -2012 has allowed the aforesaid application.

(3.) Learned counsel for the petitioner submits that the suit is for partition and therefore even the defendant is also in a position of the plaintiff and in view of the analogy contained in Order XXIII Rule 1(5) of CPC plaintiff cannot be permitted to withdraw the suit against defendant No.3. In support of the aforesaid submission, reliance has been placed on a decision of this Court in the case of Dwarika Prasad Vs. Nirmala & others (2010) (I) MPJR (SC) 285.