The main legal point established is that the right of a plaintiff to withdraw or abandon the suit under Order XXIII Rule 1 CPC is restricted by the incorporation of Rule 1-A, especially in a partition suit, to prevent prejudicial effects on the rights of other defendants.

JUDGMENT

Shree Chandrashekhar, J. - The petitioner is aggrieved of order dated 01.10.2005 passed in Partition Suit No. 81 of 2002 by which his application under Order XXIII Rule 3 CPC has been rejected and the application filed by the defendant nos. 4, 5 and 6 under Order XXIII Rule 1-A r/w Order 1 Rule 10 CPC has been allowed.

2. Partition Suit No. 81 of 2002 has been instituted by the petitioner for a preliminary decree for partition to the extent of 1/6th share for him in the suit schedule property; he is the sole plaintiff. The defendants have filed written statement raising various objections to the maintainability of the suit, however, it is not denied that the parties are descendants of a common ancestor namely, Kanhaiya Singh. During trial of the suit after examining his witnesses, the plaintiff filed an application under Order XXIII Rule 3 CPC for withdrawing the suit with liberty to him to institute a fresh suit. This application was opposed by the defendants on the ground that there is no formal defect in the suit on account of which the suit may fail and for that reason the plaintiff may be permitted to withdraw the suit. The defendant nos. 4, 5 and 6 have filed an application under Order XXIII Rule 1-A for their transposition as plaintiffs. This application has been allowed by the trial judge.

3. Contention raised on behalf of the petitioner is that the defendants who have specifically denied the claim for partition cannot be transposed as co-plaintiffs in the suit.

4. It is not in dispute that after the plaintiff laid his evidence and examined himself during the trial, he has filed the application under Order XXIII Rule 3 CPC.

5. Order XXIII Rule 1 C.P.C provides that the plaintiff may at any stage of the suit as against all or any of the defendants may abandon the suit or abandon a part of his claim, however, sub-rule 3 to Rule 1 to Order XXIII C.P.C provides that if for some formal defect the suit would fail, the court may permit the plaintiff to withdraw the suit with permission to institute a fresh suit. There is no limitation provided under Order XXIII Rule 1 CPC for moving an application for withdrawal of the suit. The only limitation is that the defect on account of which the plaintiff seeks permission of the Court to withdraw the suit must be a formal defect and it should not touch upon the merits of the matter. Obviously, the plaintiff after examining his witnesses cannot be permitted to withdraw the suit with permission to file a fresh suit.

6. Right of a plaintiff to withdraw or abandon the suit under Order-XXIII Rule 1 CPC was unrestricted till by an amendment Rule 1-A was incorporated in Order-XXIII of the Code. Rule 1-A CPC provides that if a plaintiff applies to withdraw the suit under Rule 1, on an application by a defendant for his transposition in the suit as a plaintiff if the court finds that there is substantial question of law to be decided as against one or other defendants, such defendant may be transposed as a plaintiff in the suit. Rule 1-A to Order-XXIII CPC has been incorporated to avoid a situation which may occur in a partition suit in which a plaintiff may for any reason whatsoever applies to withdraw the suit so as to prejudicially affect the right of other defendants; each party in a partition suit has an independent right to seek partition. By withdrawing the suit the plaintiff may cause injury to the other defendants, who, if the suit is withdrawn, may not be able to seek partition.

7. It is well-settled that in a partition suit each party occupies the position of plaintiff as well as defendant and that is the reason a defendant can be transposed as the plaintiff in the partition suit. Normally, an application under Order XXIII Rule 1-A CPC is allowed when the plaintiff withdraws the suit or abandons his claim under Order XXIII Rule 1 CPC, but in view of the facts pleaded in this case, I am not inclined to interfere in the matter and accordingly, the writ petition is dismissed.