In partition suits, transposition of defendants as plaintiffs must be considered based on substantial claims; the court erred in denying this request without proper assessment.

JUDGMENT :

Arun Kumar Jha, J.

The instant civil miscellaneous petition has been filed by the petitioner for quashing the order dated 18.07.2017 passed in Title Suit No. 37 of 1994 by learned Additional District and Sessions Judge-III, Patna whereby and whereunder while allowing the withdrawal of the suit by the plaintiff, the prayer of the defendant to be transposed in the category of plaintiff has been rejected.

2. Facts of the case, as culled out from the record, are that respondent filed a suit for partition bearing Title Partition Suit No. 37 of 1994 seeking 1/5th share in the property as mentioned in Schedule-I and II of the plaint. The said suit was filed by the plaintiff/respondent against his two brothers, father and two wives of his father, respectively. Petitioner is brother of the respondents and was one of the defendants. The parties entered into a compromise and a compromise petition was filed and the suit was disposed of by passing a compromise decree. However, the compromise decree was challenged by the father of the petitioner and the respondent on the ground that before passing the compromise decree he was not heard. With the said contention First Appeal No. 190 of 1996 was preferred before this Court. The said First Appeal was heard and disposed of vide judgment dated 05.01.2011 by allowing the appeal and the matter was remanded to the learned trial court for proceeding ahead in accordance with law, albeit, with certain observations. Thus, the matter was transferred back to the learned trial court. Meanwhile, another development took place in the case as plaintiff-respondent filed a Probate Case bearing number 55 of 1998 for probate of Will said to have been executed by the father Deonandan Sinha. On contest, probate case was numbered as Title Suit No. 13 of 1999. Subsequently, in the light of the decisions of Hon’ble Supreme Court partition suit was transferred to the Court where the Probate Case has been pending. In the meantime, the defendant/petitioner also filed another partition suit with regard to the left out properties of Title Suit No. 37 of 1994 and the suit of the petitioner was numbered as Title Partition Suit No. 63 of 2013. The third suit has also been ordered to be transferred to the Court of learned Additional District Judge-III, Patna and thus, all the three suits came in the same Court for hearing and trial together. It further appears that the respondent filed a petition in Partition Suit No. 37 of 1994 on 11.07.2016 under Order XXIII Rule 1 of the Code of Civil Procedure (in short “the Code”) seeking permission to withdraw the said suit, taking a plea that matter of partition had already been decided. The petitioner joined the issue and filed a petition on 18.07.2016 praying therein that if the plaintiff/respondent was interested in withdrawal of the suit, then instead of allowing withdrawal of the suit by the respondent, the petitioner be permitted to be transposed in the category of plaintiff in the suit and the original plaintiff be transposed in the category of defendant and thus, the petitioner be allowed to continue with the said suit. The parties were heard and vide order dated 18.07.2017, the petition of the petitioner was rejected and withdrawal of the suit was allowed. The said order is under challenge before this Court.

3. Mr. J.S.Arora, learned senior counsel appearing on behalf of the petitioner submitted that the impugned order is illegal and not sustainable in the eye of law. The said order has been passed in contravention to