DEVENDRA KUMAR Vs. AMRENDRA KUMAR

JUDGEMENT

(1.) The instant civil miscellaneous petition has been filed by the petitioner for quashing the order dtd. 18/7/2017 passed in Title Suit No. 37 of 1994 by learned Additional District and Sessions Judge-III, Patna whereby and whereunder while allowing the withdrawal of the suit by the plaintiff, the prayer of the defendant to be transposed in the category of plaintiff has been rejected.

(2.) Facts of the case, as culled out from the record, are that respondent filed a suit for partition bearing Title Partition Suit No. 37 of 1994 seeking 1/5th share in the property as mentioned in Schedule-I and II of the plaint. The said suit was filed by the plaintiff/respondent against his two brothers, father and two wives of his father, respectively. Petitioner is brother of the respondents and was one of the defendants. The parties entered into a compromise and a compromise petition was filed and the suit was disposed of by passing a compromise decree. However, the compromise decree was challenged by the father of the petitioner and the respondent on the ground that before passing the compromise decree he was not heard. With the said contention First Appeal No. 190 of 1996 was preferred before this Court. The said First Appeal was heard and disposed of vide judgment dtd. 5/1/2011 by allowing the appeal and the matter was remanded to the learned trial court for proceeding ahead in accordance with law, albeit, with certain observations. Thus, the matter was transferred back to the learned trial court. Meanwhile, another development took place in the case as plaintiff-respondent filed a Probate Case bearing number 55 of 1998 for probate of Will said to have been executed by the father Deonandan Sinha. On contest, probate case was numbered as Title Suit No. 13 of 1999. Subsequently, in the light of the decisions of Hon'ble Supreme Court partition suit was transferred to the Court where the Probate Case has been pending. In the meantime, the defendant/petitioner also filed another partition suit with regard to the left out properties of Title Suit No. 37 of 1994 and the suit of the petitioner was numbered as Title Partition Suit No. 63 of 2013. The third suit has also been ordered to be transferred to the Court of learned Additional District Judge-III, Patna and thus, all the three suits came in the same Court for hearing and trial together. It further appears that the respondent filed a petition in Partition Suit No. 37 of 1994 on 11/7/2016 under Order XXIII Rule 1 of the Code of Civil Procedure (in short "the Code") seeking permission to withdraw the said suit, taking a plea that matter of partition had already been decided. The petitioner joined the issue and filed a petition on 18/7/2016 praying therein that if the plaintiff/respondent was interested in withdrawal of the suit, then instead of allowing withdrawal of the suit by the respondent, the petitioner be permitted to be transposed in the category of plaintiff in the suit and the original plaintiff be transposed in the category of defendant and thus, the petitioner be allowed to continue with the said suit. The parties were heard and vide order dtd. 18/7/2017, the petition of the petitioner was rejected and withdrawal of the suit was allowed. The said order is under challenge before this Court.

(3.) Mr. J.S.Arora, learned senior counsel appearing on behalf of the petitioner submitted that the impugned order is illegal and not sustainable in the eye of law. The said order has been passed in contravention to the expressed provisions of the law. The learned trial court did not take into consideration the fact that in a partition suit every plaintiff is a defendant and every defendant is a plaintiff and status of both are the same. The learned trial court further failed to take into consideration that the partition suit was sought to be withdrawn after 22 years of its filing and it was prudent to consider the prayer of the petitioner for his transposition as plaintiff. Mr. Arora further submitted that the learned trial court has committed gross jurisdictional error by ignoring the provision of Order 23 Rule 1A of the Code which specifically provides for transposition of defendants as plaintiffs when a suit is withdrawn or abandoned by the plaintiffs under Order 23 Rule 1 of the Code and the defendants applies to be transposed as plaintiff. The learned trial court also ignored the fact that the suit was transferred to the Court of learned Additional District Judge-II to be clubbed, heard and tried together with other title suits. Thus, the learned senior counsel submitted that the impugned order is not only illegal and erroneous, it is against the law. Mr. Arora futher pointed out that while remanding the matter to the learned trial court, the compromise petition filed in the suit was still pending and after the order of remand it was obligatory on the part of learned trial court to dispose of the same first and till the same was disposed of, there was no occasion for it to allow the withdrawal of the suit. Thus, Mr. Arora submitted that the learned trial court committed the error of jurisdiction in passing the impugned order and the same be set aside and the prayer of the petitioner for transposition as a plaintiff be allowed.