- (1.) PETITIONER has filed this petition challenging order dated 12.12.2013 (Annexure P3) whereby the plaintiff was permitted to withdraw the suit with liberty to file a fresh one .
(2.) LEARNED counsel for the petitioner has submitted that the suit was listed for rebuttal evidence of the plaintiff and arguments and at that stage, the trial Court had erred in permitting the plaintiff to withdraw the suit with liberty to file a fresh one. In support of his arguments, learned counsel has placed reliance on Ram Chander vs. Jatish Chander,1988 HRR 566 wherein it has been held as under: - "The non -joining of necessary parties is also not a good ground to attract the provisions of Rule 1, Order 23 of the Code as it cannot be said to be a formal defect. The finding of the Bombay High Court in the Asian Assurance Co. Ltd.'s case can be safely referred in this regard. The finding of this Court in Joginder Singh's case are not applicable to the case in hand as therein during the pendency of the suit, in partition proceedings, and ownership of the plaintiff in some of the Khasra Number was changed. Under these circumstances, it was held that he was rightly allowed to withdraw the suit under the provisions of Rule 1 Order 23 of the Code as it amounted to a sufficient ground for allowing the plaintiff to file a fresh suit on the same cause of action. It appears that the trial Court wanted to dispose of an old suit by unnecessarily invoking the provisions of Rule 1 Order 23 of the Code. Thus, under these circumstances, the impugned order of the trial Court being not legally sustainable, the same is hereby set aside by accepting this revision petition. These will,however, be no order as to costs. The trial Court shall restore the suit against its original number and dispose it of in accordance with law. The parties through their counsel are directed to appear before the trial Court on 7th September,1988. The trial Court file be sent back forthwith."
(3.) LEARNED counsel has further placed reliance on Rapolu Yadagiri vs. Smt.Rapolu Lakshmamma and others, 2003 AIR(AP) 300 wherein it has been held as under: - The suit was filed for partition. There is no much difference in the plaintiffs and defendants. Plaintiff is a defendant and defendant is a plaintiff. At any stage, subject to certain restrictions, if plaintiff abandons the claim, the defendants can be transposed as plaintiff. Under Rule 1 of Order XXIII of CPC plaintiff is given a right to abandon his claim with the leave of the Court and also withdraw his claim. The Court, while granting permission to the plaintiff to withdraw the suit, is required to be satisfied with reasons of such withdrawal. There may be some formal defects in suit or there are sufficient grounds for allowing the plaintiffs to institute fresh suit. Further, the Court can grant permission to withdraw the suit giving liberty to institute fresh suit.Sub -rule (5) of Rule 1 of Order XXIII of CPC, however, lays down that nothing in Rule 1 of Order XXIII shall be deemed to authorize the Court to permit one of several plaintiffs to withdraw the suit without the consent of other plaintiffs. Under Rule 1 -A when plaintiff withdraws or abandons the suit, the defendant can apply to be transposed as plaintiff under Rule 10 of Order I if he shows substantial question to be decided against other defendants.For example, in a suit for partition filed by one plaintiff some defendants may support the case of the plaintiff and others may set up exclusive right in them adverse to the interest of the plaintiff as well as other defendants. In such a case it is always open to the defendants, whose interest is adverse to another group's interest to get transposed as plaintiffs. Therefore, in a suit for partition unless the defendants who have interest in the property consent for withdrawal of suit, the Court cannot permit such withdrawal.'' In the present case, plaintiff -respondent No.1 had filed suit for partition. In the said suit, certain necessary parties were not impleaded as party. Although, an application was moved by the plaintiff for permission to amend the plaint but the same was dismissed.;