LALI DEVI Vs. NAKCHHED PRASAD

JUDGEMENT

(1.) HEARD learned counsel for the petitioner and learned counsel for the opposite parties and perused the impugned order dated 5.4.2000 passed by learned Sub -Judge IVth, Bettiah in Partition Suit No. 21 of 1991.

(2.) FROM the impugned order it appears that the petitioner -defendant no. 16 is related to the plaintiff as a sister and when a petition was filed in the suit for deleting the name of defendants 12 to 16 from the plaint and for withdrawal of the suit in view of compromise between the other parties, the petitioner filed a petition praying that she should be transposed as a plaintiff in view of Order 23 Rule 1 -A of the Code of Civil Procedure. The said prayer of the petitioner was rejected by the impugned order after noticing that except defendant no. 16 all other parties have a different case that there was a partition in the family through a partition deed dated 13.6.1952 and all other members of [he family have agreed to compromise the suit for which a compromise petition has already been filed. The last part of the impugned order shows that parties are to take effective steps on the next date in the light of compromise petition. On behalf of petitioner it has been submitted that when a suit is withdrawn or abandoned by a plaintiff under Order 23 Rule 1 C.P.C. then transposition of a different person as plaintiff may be permitted, if prayer is made to that effect and the court below has committed an error in not permitting the petitioner to be transposed as a plaintiff. On the other hand, learned counsel for the opposite parties has submitted that in fact there is no withdrawal of suit or abandonment of any claim, rather the plaintiffs have chosen to delete the name of defendants 12 to 16 from the list of defendants for which they have filed a petition and all the remaining members of the family have filed a compromise petition. Hence, in fact, the suit is not being withdrawn or abandoned by the plaintiff but it is being compromised and only some parties such as defendants 12 to 16 are sought to be deleted from the list of defendant. It has further been submitted that since the petitioner defendant no. 16 on being deleted from the list of defendants will not be bound by the compromise decree hence she cannot take any objection to compromise. As per course of action opted by defendant no. 16, she will be at liberty to pursue the same by filing an independent suit in accordance with law.

(3.) ON a careful consideration of all the material facts, this court is of the view that learned Sub - Judge has rightly found that the case of defendant no. 16 appears to be quite different from the case of the plaintiff or the remaining defendants and therefore he has rightly not permitted defendant no. 16 to be transposed as a plaintiff in the present suit. It is further found that in the facts of the case petitioner will not suffer any legal injury because it is on record that plaintiffs have prayed for deletion of defendants 12 to 16 from the plaint and in that view of the matter the compromise cannot adversely affect a person who will not be a party to this suit. In that view of the matter I find no merit in this revision petition and the same is accordingly dismissed.