The defendant seeking a share in a partition suit is also in the position of a plaintiff and cannot be ignored when the original plaintiff seeks to withdraw the suit. The plaintiff's right to withdraw the suit is not unconditional, and the defendant may be allowed to be transposed as plaintiff in the suit.

Heard the learned counsel for the appellant and learned counsel for the respondents. The appellant was defendant No.3 in a suit for partition filed by the Respondent No.1. The respondent No.2 was the head of the family and appellant was his daughter.

2. During pendency of the partition suit, the first respondent, it is alleged by the appellant, had in collusion with the other respondents sought to withdraw the suit in order to defeat the rights of the present appellant, and without determining and ignoring the counter claim of the appellant and without allowing transposition of the appellant as plaintiff in the above suit, the trial court had allowed withdrawal of the suit and therefore aggrieved by the same, the present appeal is filed.

3. The learned counsel would submit that the law on the point is no longer resintegraand it has been held by a Division Bench of this court in, Gowramma vs. Nanjappa, ILR 2001 KAR 4853, as to the procedure that was required to be followed by the trial court in such a situation, and whether the trial court could have allowed the application, IA No.19, filed by the plaintiff under Order XXIII Rule 1 of the Code of Civil Procedure, 1908, (hereinafter referred to as the ‘CPC’, for brevity) ignoring the plight of the present appellant, is the only question to be decided.

4. The learned counsel for the respondent No.1(A) on the other hand would submit that there is no bar for the appellant to pursue an independent remedy of filing a fresh suit for partition and this liberty has been granted by the trial court itself. Hence the appellant cannot be said to be aggrieved and even now she is entitled to file a suit for partition and in that view of the matter, there is no error committed by the trial court and seeks to justify the impugned judgment.

5. However, the judgment referred to herein above lays down the procedure to be followed in cases such as this. The facts of that case were almost similar to the present case on hand and the Division Bench while referring to the decision in the case of Jagmohan v. Dera Radha Swami Satsang, AIR 1996 SC 2222, has noticed that the Supreme Court has laid down that a counter claim is no longer confined to money claims or to a cause of action of the same nature as an original action of the plaintiff and that this court in State Trading Corporation of India Ltd., v. Vanivilas Cooperative Society Ltd., 2001(5) Kant. LJ 570, has held that a counter claim need not be restricted to money suits only. Therefore, it was held that whether a claim for a share by a defendant in a partition suit, is a counter claim was not the issue. The question was, whether the defendant seeking a share is also in the position of a plaintiff and whether the original plaintiff cannot therefore withdraw the suit without the consent of the defendant who is in the position of the plaintiff. After noticing the judgment of other high courts namely, Tukaram Mahadu Tandel v. Ramchandra Mahadu Tandel, AIR 1925 Bom. 425, R Ramamurthi v. Rajeshwara Rao, AIR 1973 SC 643, Ajita Debi v. Hossenara Begum, AIR 1977 Calcutta 59, wherein it was held that where an application has been made under Order XXIII Rule 1 C.P.C, the plaintiff is entitled to withdraw the suit and defendants cannot be heard to oppose such a prayer but the said legal right of the plaintiff, to withdraw the suit, is not unconditional. The court can only exercise its power in favour of the plaintiff where the defendant’s right is not adversely affected if the plaintiff is allowed to withdraw the suit. The sole plaintiff normally cannot be allowed to withdraw the suit. The defendant may be allowed to be transposed as plaintiff in the suit. And that the above principle was followed and reiterated in the case of Pattabhiramayya v. B. Gopalakrishnayya, AIR 1986 Andhra Pradesh 270, while placing reliance on the decision of the Supreme Court in the case of Hulas Rai v. K.B. bass and Co., AIR 1968 SC 111. It was laid down that the procedure