Point of Law: When transposition of defendants as plaintiffs may be permitted.-Where a suit is withdrawn or abandoned by a plaintiff under rule 1, Court shall, in considering such application, have due regard to question whether the applicant has a substantial question to be decided as against any of other defendants

ORDER :

1. The subject suit in O.S.No.98/1986 is for a decree of dissolution of Partnership Firm and for the rendition of accounts; petitioner happens to be the first defendant; first respondent happens to be the second defendant and second respondent is the plaintiff; a Preliminary Decree for dissolution of the Firm is entered on 31.08.1990; the enquiry as to rendition of accounts & mesne profits is stated to be pending; at this stage, the plaintiff moved a memo seeking leave of the Court below for withdrawal of the suit and the same is rejected on 29.08.2016.

2. Petitioner moved the subject application under Order I Rule 10(2) although the right provision is Order XXIII Rule 1A of the Code seeking his transposition as the plaintiff since, the original plaintiff wanted to withdraw the suit by filing application under Order XXIII Rule 1; pursuant to the Preliminary Decree in question there was FDP in which a warrant of arrest has been issued against the first respondent herein; his challenge thereto in Writ Petition, in Writ Appeal & later in SLP has been dismissed; the request for transposition having been opposed by the respondents herein, the learned trial judge vide order dated 07.09.2016 a copy whereof is at Annexure-A has rejected the request; that is how, this writ petition has arisen.

3. After service of notice, the respondents having entered appearance through their counsel resist the writ petition contending that: there is no identity of the claim of the petitioner in the Written Statement with that in the plaint; the petitioner has not filed the Counter Claim; plaintiff being the dominant litus, can seek the withdrawal of the suit and such an application is very much pending; there is another kindred comprehensive suit in O.S.No.557/2012 filed by the first respondent wherein petitioner being the first defendant can workout his remedy which he wants to achieve by the intended transposition; so contending, both the learned advocates appearing for the respondents press for the dismissal of the writ petition.

4. Having heard the learned counsel for the parties and having perused the petition papers, this Court is inclined to grant indulgence in the matter as under and for the following reasons:

(a) As already mentioned above, the subject suit is one for the dissolution of Partnership firm and rendition of accounts; a Preliminary Decree is made on 31.08.1990 and firm is held to be dissolved w.e.f. 14.06.1985; accordingly the decree has also been drawn on 31.07.1991; the enquiry as to rendition of accounts and also as to mesne profits has been set in motion; at the instance of the petitioner, properties of the firm came to be attached; later on 04.07.2007 petitioner’s application in I.A.No.4/2006 having been favoured, an arrest warrant has been issued against the first respondent for detaining him in civil prison for willful disobedience of the court order; first respondent’s challenge to the same in W.P.No.19990/2007 was dismissed by the single Judge of this Court on 14.07.2008; this dismissal has been affirmed by the Division Bench in his W.A.No.1230/2008 vide order dated 26.03.2009; he had filed SLP Nos. 24009-24010/2009 against the same wherein he had given an undertaking to make the payment which he did not adhere to and consequently the SLPs came to be dismissed on 11.09.2009 by virtue of preemptory order dated 06.07.2009; that being the position, the second respondent’s resistance to the transposition of petitioner is only to clandestinely undo the effect of the proceedings in the court below, in this court and in the highest court of the country; therefore what cannot be done directly cannot be permitted to be done circuitously; rejection of petitioner’s request for transposition that too when the original plaintiff wants to withdraw the suit militates against all this and more too.

(b) As already mentioned above, there is a decree for the dissolution of the Partnership Firm and thus, rights of the parties qua the Firm