JUDGMENT

B. P. DAS, J. — Heard Shri A.K.Mohapatra, learned counsel for the petitioner. None appears for the opposite parties in spite of service of notice.

2. This revision application arises out of the order dated 10.8.2001 passed in T.S.No. 58 of 1998 by which the Civil Judge (Senior Division), Jajpur, has allowed the application filed by the plaintiff under Order 23, Rule 1 of the Code of Civil Proce¬dure (‘C.P.C.’ in short) for withdrawal of the suit and rejected the application filed by defendant No. 2, the present petitioner, under Order 23, Rule 1-A, C.P.C. to transpose him as plaintiff.

3. O.P.No. 1 filed the aforesaid suit against the present petitioner and O.P.Nos. 2 to 4 praying for partition of the suit schedule property. Defendant No. 1-O.P.No. 2-Radhanath Jena filed another suit, i.e. T.S.No. 244/1997, for partition of the above suit property as well as certain other properties. As it appears, by order dated 14.9.2000 passed in Civil Revision No. 16 of 2000, this Court directed the trial Court to dispose of T.S.No. 244/1997 within six months. For the aforesaid reason, the plain¬tiff-O.P.No. 1-Jadunath Jena filed a petition under Order 23, Rule 1, C.P.C. for withdrawal of T.S.No. 58/1998. At the same time, defendant No. 2, the present petitioner, filed a petition objecting to the prayer for withdrawal of the aforesaid suit T.S.No. 58 of 1998, saying that the plaintiff has filed the present suit for partition of the joint family property of the plaintiff and defendant Nos. 1 and 2 as per the decree passed in T.S.No. 105/1995 by the Civil Judge (S.D.), 1st Court, Cuttack. According to him, the suit properties are the homestead lands alongwith residential building and valuable trees standing there¬on. Defendant No. 2 has filed his written statement claiming 1/3rd share in the suit properties. According to the present petitioner-defendant No. 2, the plaintiff in connivance with defendant No. 1 filed an application not to proceed with the suit and for withdrawal of the same and another petition acceding to the counter claim made by the defendant No. 1. Appre¬hending that the withdrawal of the suit would ultimately deprive defendant No. 2 of his share has prayed for transposing him to the category of the plaintiff and the plaintiff to the category of defendant.

4. The trial Court after hearing both the parties has come to observe that as per the provision of Order 23, Rule 1, C.P.C. the plaintiff at any time after institution of the suit may abandon his suit as against all or any of the defendants and also any part of his claim with the leave of the Court and accordingly allowed the petition for withdrawal of the suit. So far as the application for transposition is concerned, the trial Court held that the Court cannot compel the plaintiff to proceed with the suit and allow the defendant to complain against the plaintiff as because there is no affinity and identity of interest between the plaintiff and defendant No. 2 in the present suit, and rejected the application as there is no sufficient reason to transpose the plaintiff to the category of defendant and vice versa. During the hearing of the aforesaid application, defendant No. 2 placed reliance on the principle decided in Smt. Ajita Debi v. Mustt. Hussenara Begum, AIR 1977 Calcutta 59, in support of his case. The said principle, as quoted in the impugned order, is extracted hereunder:

“Withdrawal and adjustment of suit - It is not permissible unless the Court is satisfied about adjustment of suit wholly or in part against all defendants. Transposition of parties should be allowed for complete adjudication upon questions involved in the suit.”

The trial Court, however, simply brushed aside the above proposi¬tion with the observation that the principle decided in the aforesaid decision is almost different from the present suit.

5. Admittedly the plaintiff has filed the suit for parti¬tion of the property where the other defendants (defendant Nos. 1 and 2) are the copa