In a partition suit, the right of the plaintiff to withdraw the suit under O.23, R.1(1) of the Code is limited to the extent that it does not result in defeating a right which has already vested in the defendant.

1. This application is directed against an order refusing leave to the plaintiffs to withdraw their suit and transposing the defendants to the category of plaintiffs.

2. It appears that a suit for partition of certain properties was filed by the plaintiffs-petitioners originally against defendants 1 to 3. The plaintiffs alleged that plaintiff No. 1 and defendant No. 1 were sons of one Girwar Narain Singh, that on his death defendant No. 1 became the karta of the family and looked after the management of the properties; that the relationship between the two brothers had become strained and hence the demand for and the suit for partition. According to the defendants, the aforesaid Girwar Narain Singh had a brother Mahendra Narain Singh who had separated from his brother and he had gifted away his property to defendant No. 1. The defendants further alleged that they had also separated from the plaintiffs.

3. Thereafter one Janki Devi claiming to be the widow of Mahendra Narain Singh filed a petition under O.I, R.10 of the Civil P.C. (hereinafter called the Code) for being impleaded as a defendant and it was allowed. She made out a case that she had inherited and got the properties of her husband Mahendra and not the first defendant. There was another parson Permila Devi claiming to be the daughter of said Mahendra Narain Singh from his first wife who filed a similar petition for being impleaded as an intervenor defendant. Her prayer was also allowed. She made out a third case to the effect that Mahendra and Girwar were joint with one Nagendra Narain, their stepbrother. According to her, all of them were in joint possession of the property. The claim of this lady was denied by the other defendants. It appears next that she filed a petition on 17-7-75 for appointment of a receiver in respect of the suit properties.

It is said that this application was rejected by the trial court but an order for payment of ad interim maintenance in favour of the said Parmila Devi was passed. As against that, there were civil revision applications in this court. In this court she said that she would not claim maintenance. In that view of the matter this court said that the order regarding maintenance would not be given effect to. For that reason the applications in this court were withdrawn. Next it appears that in the court below she pressed the point and ultimately by an order dated the 3rd of Feb. 1976 a receiver was appointed. There was no appeal or revision against this order and it became final.

4. It appears that much before this, Parmila Devi had filed a petition for being transposed to the category of the plaintiffs in case the plaintiffs wanted to withdraw the suit. It appears from the order sheet that the petition was not moved and was kept on record. On the 15th of Jan. 1977, the plaintiffs filed a petition under O.23, R.1 of the Code for permission to withdraw the suit. A rejoinder was filed by Parmila Devi objecting to the aforesaid course. The other defendants did not object to the withdrawal. The matter was heard on the 3rd of Feb. 1977. On that date Parmila Devi again filed a petition for being transposed to the category of plaintiffs. The learned Judge allowed her prayer by ordering her transposition to the category of plaintiffs and of the plaintiffs to the category of defendants and also refused the prayer of the plaintiffs to withdraw the suit. Hence this application.

5. The court below held that in a suit for partition every defendant is in the position of a plaintiff and the suit could not, therefore, be allowed to be withdrawn. In view of the aforesaid the prayer of defendant Parmila Devi was considered fit to be allowed.

6. Counsel for the petitioners has urged that a plaintiff has an absolute right granted by O.23, R.1 of the Code to withdraw the suit and the court below had, therefore, no jurisdiction refuse the prayer. In this connection he placed reliance on a decision of the Supreme Court in the case of M/s. Hul