The transposition of defendants as plaintiffs in a partition suit may be permitted under Order 23 Rule 1A of C.P.C. if it is necessary for effective and complete adjudication of the settlement of all the questions involved in the suit.

1. The petitioners are defendants 1 and 2 in O.S.No.4434 of 2000 on the file of the XII Assistant Judge, City Civil Court, Chennai. The first respondent filed the suit for Partition and separate possession of 1/5th share in the A and B Schedule properties. Pending trial of the suit, at the instance of the defendants 5 to 7 to implead them in the suit, who are sons of the plaintiff, as parties to the suit, they were impleaded as such. The application for impleading them as defendants 5 to 7 was strongly opposed by him and the same was dismissed on merits and the revision, challenging the said order was allowed by the High Court. Presently, they are ranked as defendants 5 to 7. The first respondent/plaintiff filed an application under Order 1 Rule 10 of C.P.C. to transpose the defendants 5 to 7 as plaintiffs 2 to 4 alleging in the affidavit that he purchased the suit properties benami in their names. As defendants 5 to 7 are his sons, the petitioner has not claimed any relief against them and they want to engage same advocate to protect their interest. Hence the petition may be allowed.

2. In the counter filed by the respondent No.1 and 2, it is stated that unless the plaintiff has abandoned or withdrawn the suit as regards the proposed parties, they could not be transposed as plaintiffs under Order 1 Rule 10 of C.P.C. The petitioner has no locus standi to maintain the application under Order 1 Rule 10 of C.P.C. In a partition suit all the parties are entitled to relief of a just and valid partition irrespective of the fact whether they are arrayed as plaintiff or defendant. If they were transposed as prayed for by the plaintiff, it will change the character of the suit and the valuable rights accrued by the defendants are likely to be affected. Hence the petition has to be dismissed.

3. The learned XII Assistant Judge, City Civil Court, Chennai, allowed the application by observing that defendants 5 to 7 appeared and stated that they had no objections to their being transposed as plaintiffs, that even if they continued as defendants they would file written statement only in support of the plaintiff and that the plaintiff and the defendants 5 to 7 have no conflicting interest, who are sailing together.

4. Mr. G.R.S. Chander Rao, learned counsel for the petitioner would submit that transposing defendants 5 to 7 as plaintiffs would cause great hardship to the defendants and the nature and character of the suit will also get altered and there is no need for transposing them as prayed for.

5. Arguing on the other side of the coin, Mrs. S.L. Kalavathy, learned counsel for the first respondent contends that since it is a suit for partition, every party, whatever may be his rank has to be considered as a plaintiff and transposition of sons of plaintiff as plaintiffs would not cause any harm to the defendants and there is no scope for alteration in the nature of the suit.

6. It is appropriate to extract Order 23 Rule 1A of C.P.C. which reads as follows:

"1-A. When transposition of defendants as plaintiffs may be permitted:- Where a suit is withdrawn or abandoned by a plaintiff under Rule1, and a defendant applies to be transposed as a plaintiff under Rule 10 of Order 1, 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."

7. In order to proceed with the case, Order 23 Rule 1 should be complied with, which envisages that at any time after the institution of suit, the plaintiff may against all or any of the defendants to suit abandon a part of his claim. Any of these conditions has to be fulfilled before seeking relief under Order 23 Rule 1A. Defendants 5 to 7 are none other than the sons of the plaintiff and the plaintiff has categorically stated that he has purchased the suit property binami in their names and that he is not having any conflict of interest with them and that he does not claim any r