2008 Supreme(Kar) 492

2008 (4) KLO 351 AC 313
IN THE HIGH COURT OF KARNATAKA
N.K. Patil, J.
Writ Petition No. 15215/2006 (GM-CPC)
K. L. Shivananjamurthy - Petitioner
Vs.
K. L. Nagaraj - Respondent
Decided on 7-8-2008

Result: Petitions dismissed.

Headnote:Code of Civil Procedure, 1908 - Order 1, Rule 10(2) - Transposition of parties - Application for - Suit for partition - Failure of plaintiff to prosecute - Amounts to abandonment of his claim - Hence, defendant is entitled to claim his legitimate share by transposing himself as plaintiff and to prosecute suit - In allowing application trial court has not committed any error.

       Held: It is settled principal of law that, in a partition suit each plaintiff is a defendant and defendant, the plaintiff. Every legitimate sharer can claim partition and allotment of his share by paying court fees. If the suitor does not intend to prosecute the suit, it is open to any defendant to claim his legitimate share by transposing himself as plaintiff and to prosecute the suit. If such a course is not valid, it would lead to incongruous results and the suit have to be dismissed for non-prosecution or kept in cold storage without there being any progress in the trial. Therefore, in such circumstances, definitely be detrimental to the interest of the defendant No.2 i.e., the respondent herein who intends to seek partition and allotment of his share by paying court fee. Therefore he has opined that it is just and expedient to allow the application of the respondent herein to come on record as plaintiff and prosecute the suit by paying requisite court fee in respect of the property he has claimed share.