P. Somarajan, J.

This appeal is preferred against the decree and judgment dated 28.02.2015 in O.S. No.302/2010 on the file of Principal Sub Court, Thiruvananthapuram.

2. The suit was filed for getting a partition of the plaint schedule properties. The contention raised by the plaintiff is that, he is entitled to half share over the property. Defendants are the mother and other siblings of the plaintiff. Later on, the plaintiff went away from the suit when it was listed for trial. So, the lower court has allowed transposition of second defendant as additional second plaintiff and proceeded with the suit. The additional second plaintiff was allowed to give oral evidence as PW1 and on hearing both the parties, passed a preliminary decree, against which, this appeal is preferred.

3. Heard the appellant and respondents Nos. 2 and 3, who entered appearance through learned counsel Sri. P.B. Krishnan. As far as respondent No.1 and 4, a paper publication was issued in the matter of condoning delay, but not turned up. On going through the impugned judgment prima facie it appears that the Lower Court has overlooked the principles governing transposition of a party. Order XXIII deals with the withdrawal and adjustment of suits. Order XXIII Rule 1A is extracted below for reference.

"[1A. When transposition of defendants as plaintiffs may be permitted - Where a suit is withdrawn or abandoned by a plaintiff under rule 1, and a defendant applies to be transposed as a plaintiff under rule 10 of Order I, the Court shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants.]" [emphasis supplied]

4. The relevant portion of Rule 1 of Order XXIII is also extracted below for reference.

"[1. Withdrawal of suit or abandonment of part of claim - (1) At any time after, the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim;

Provided that .....

(2) ....

(3) .....

(4) Where the plaintiff -

(a) abandons any suit or part of claim under sub-rule (1), or

(b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.

(5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs.]

5. A mere reading of Rule 1A of Order XXIII would show that transposition of a defendant can be allowed only when the suit is withdrawn or abandoned by the plaintiff. So Rule 1A of Order XXIII deals with a situation wherein the original plaintiff or the plaintiffs, as the case may be, withdrawn or abandoned the suit. Rule 10 of Order I stands for the power of Court to substitute a party or to add a party in a suit, whenever the court thinks it just. Rule 10 of Order I enables the Court to strike out or add parties whenever the courts found it necessary for effective and complete adjudication of matter in dispute. Insofar as the power of Court under Order I Rule 10(2) CPC, not separate application is necessary. But, whenever an application for transposement was made, a written application is necessary as per the mandate under Rule 1A of Order XXIII. Rule 1A of Order XXIII has to be read along with Rule 1 sub rule (4) and (5), which permit the plaintiff to abandon any suit either in part or in full with a condition that he shall thereafter be precluded from instituting any fresh suit in respect of such subject matter and such claim. Clause 5 of sub rule 1 of Order XXIII speaks about the abandonment of suit when there are several plaintiffs either in part or to withdraw the suit or any part of claim