The court clarified that the right of a plaintiff to abandon or withdraw a suit under Order 23, Rule 1(1) of the Civil Procedure Code has been curtailed by the insertion of Rule 1A, which requires the court to consider whether there is a substantial question to be decided between the defendants if a defendant applies for transposition as a plaintiff.

1. Defendant No. 2 is the petitioner. Opposite Party No. 1-plaintiff filed Title Suit No. 206 of 1982 praying therein for decree for specific performance of agreement dt. 09-09-1979 said to have been entered into by and between him and opposite party No. 2 (defendant 1).

2. When the agreement was executed, opposite party No. 1 was occupying the property in question as a tenant month to month. According to the petitioner, opposite party No. 2 had entered into an agreement with him on 21-5-1979 to transfer the suit property in his favour. On 8-1-1983 opposite party No. 2 executed and registered a sale deed in favour of the petitioner. The petitioner gave notice to opposite party No. 1 about the transfer in his favour and asked opposite party No. 1 to vacate the suit property. As opposite party No. 1 did not vacate the suit property, the petitioner filed Title Suit No. 13 of 1983 for his eviction.

3. In the written statement opposite party No. 1 disclosed about Title Suit No. 206 of 1982 filed by him. The petitioner filed an application for adding him as defendant in Title Suit No. 206 of 1982. That was allowed.

4. The parties led evidence in Title Suit No. 206 of 1982 and the suit was fixed for argument. On 25-7-1985, argument of petitioner was heard in part and the case was adjourned to 26-7-1985 for further hearing. However, on that date, opposite party No. 1 as plaintiff filed an application for allowing him to withdraw Title Suit No. 206 of 1982 as opposite party No. 2 had transferred the suit property to him by a registered sale deed dt. 28-7-1984. The petitioner filed his objection and prayed that he may be transposed as plaintiff.

4-A. The Court below by order dt. 11-2-1986 allowed the prayer of opposite party No. 1 for withdrawal of the suit and refused the prayer of the petitioner. It may be mentioned that opposite party No.2 (defendant No. 1 in Title Suit No. 206 of 1982) did not contest the suit. In this civil revision application, the petitioner has challenged the validity of order dt. 11-02-1986 passed by the Court below. Opposite Party No.2 has not appeared.

5. Order 23, Rule 1(1) of Civil P.C. (for short the Code) provides that at any time after institution of the suit, the plaintiff may against all or any of the defendants abandon his suit or abandon part of his claim. There is a proviso with which we are not concerned in this case. We are not concerned with other provisions of R.1.

6. Ordinarily plaintiff may abandon a suit or abandon all his claim or part of it as a matter of right without permission of Court; reference may be made of M/s. Hulas Rai Baij Nath V/s. Firm K.B. Bass and Co., AIR 1968 SC 111. It was, however, contended on behalf of the petitioner that since opposite party No. 1 wanted to defeat the right to the petitioner in the property in suit, he should not be allowed to withdraw the suit and in view of R.1-A of O.23, the petitioner should be transposed as plaintiff and opposite party No. 1 should be transposed as defendant 2 in Title Suit No. 206 of 1982. Learned counsel appearing on behalf of opposite party No.1 submitted that as opposite party No.2 has executed the sale deed in favour of opposite party No.1 and as opposite party No.1 has got the relief which he prayed for in the suit, opposite party No.1 has right to withdraw the suit. It was also urged that the petitioner cannot be transposed as plaintiff.

7. There are decisions of Supreme Court and different High Courts including this Court (to notice a few) , which lay down when a defendant may be transposed as plaintiff if the latter files application under O.23, R.1(1). In a suit for partition, if the plaintiff wants to withdraw the suit, the defendant, if he wants to prosecute the suit should be transposed as plaintiff. The same is the position with regard to suit for accounts by a partner. There is no difficulty, in appreciating this proposition as in such suits, the position of all the parties is that of plaintiff. Again if a p