S.N.Hussain, J.

1. Heard learned counsel for the parties.

2. Petitioner is Defendant No. 27 of Title Suit No. 45 of 1974, which was filed by Opposite Party first set for declaration that certain Pattas, Rehans and Deeds of transfer were void and not binding upon them.

3. The defendant-petitioner is aggrieved by the impugned order dated 16.12.1997 passed in the aforesaid suit by which the learned Subordinate Judge-IV, Arrah (Bhojpur), allowed the plaintiffs petition for withdrawal of the suit.

4. The learned counsel for the petitioner doggedly challenges the aforesaid impugned order and submits that earlier the defendant-petitioner had filed a petition for transposition as plaintiff in the suit which was allowed by the trial Court on 22.4.1996. But that order was challenged by the plaintiffs in Civil Revision No. 1403 of 1996 and this High Court set aside the order of the trial Court on 11.8.1997 (Annexure-1) on the ground that unless the defendant files his written statement, such petition cannot be allowed, as transposition can be allowed only when the defendant adopts the plaintiffs case.

5. The learned counsel for the petitioner further contends that after the aforesaid order of Hon ble High Court the defendant petitioner filed his written statement on 30.9.1997 (Annexure-7) adopting the original plaintiffs case and on the same day he filed a fresh petition (Annexure-6) under the provision of Order I, Rule 10 of the Code of Civil Procedure for being transposed as a plaintiff. The learned counsel for the petitioner also submits that defendant-petitioner and the husband of plaintiff-Opposite Party No. 1 were full brothers and had common and same interest, but since the plaintiffs had gone in collusion with the contesting defendants after the filling of the suit, it was necessary to transpose the petitioner to save the suit. He further contended that the learned Court below did not consider as to whether any substantial question has to be decided against other defendants and thus violated the specific provision of Order XXIII, Rule 1-A of CPC.

6. It is also stated by the learned counsel for the petitioner that without considering and taking up his petition for transposition, the learned Court below took up the plaintiffs petition for withdrawal of the suit and allowed it by the impugned order, although, had the petitioners petition for transposition been taken up, he would have been transposed as plaintiff as per the earlier order of the Hon ble High Court and there would have been no occasion for withdrawal of the suit as claimed by the plaintiffs-opposite parties, and utmost they would have been transposed as defendants as they did not want to continue the suit as plaintiffs and hence they would have suffered no loss at all, but by the withdrawal of the suit the petitioner was greatly prejudiced as he is bound to suffer serious hardships.

7. On the other hand, the learned counsel for the plaintiffs opposite party first set stated that they had filed petition for withdrawal of the suit on 10.9.1997 (Annexure-4) i.e., much before the filing of written statement and petition for transposition by the defendant-petitioner i.e., 30.9.1997 and hence the learned Court below rightly took up and decided the earlier petition first. He further claimed that when both the plaintiffs had filed the petition alongwith affidavit for unconditional withdrawal of the suit, the Court had not option but to allow the said petition. It was also contended on their behalf that this Hon ble High Court on the earlier occasion never directed the Court below to transpose the petitioner as plaintiff as is apparent from order dated 11.8.1997 (Annexure-1) and had only directed to pass a fresh order in accordance with law.

8. After considering the arguments of the parties and after perusing the materials on record including the various petitions and orders of this Court as well as of the learned Court below, it is quite apparent that this Court while