In partition suits, defendants retain the right to seek partition without needing to be transposed as plaintiffs, and apprehensions regarding non-prosecution do not justify such transposition.

ORAL ORDER

Aggrieved by the order passed in I.A.No.VI in O.S.No.407/2016 dated 30.07.2018 by the I Additonal Civil Judge and JMFC, Malur, the petitioners/defendant Nos.3 and 5 are before this Court.

2. I.A.No.VI is filed by defendant Nos.3 and 5 under Order 1 Rule 10(2) of CPC to permit them to transpose as plaintiff Nos.4 and 5. By order impugned dated 30.07.2018, the trial Court had dismissed the application. It is the case of the defendant Nos.3 and 5 that they may be permitted to be transposed as plaintiff Nos.4 and 5. It is stated that during the pendency of the case, item Nos.1 and 2 of the suit schedule property is acquired by the National Highways authorities, Bangalore and fixed the compensation amount. When such being the case, the plaintiffs have colluded with the defendants and got compromised the matter without consent and knowledge of the defendants and it is very pertinent to note that the defendant Nos.1, 2, 4, 6 and 7 have also obtained signature of the plaintiffs and filing the application to withdraw the fixed compensation amount in favour of other defendants and plaintiffs. It is stated that the defendants are also one of the co-parceners and they are entitled for 1/3^rd share in the suit schedule properties and that in a suit for partition, all the co-parceners either can be plaintiffs or the defendants and they can be transposed to any position in view of the common interest and rights involved in the subject matter. As the plaintiffs are not pursuing the claim and if the suit is dismissed for non-prosecution, the interest of the defendants would be effective and as such, they may be transposed as plaintiffs.

3. The trial Court by order impugned had dismissed the application observing that only on the apprehension of defendant Nos.3 and 5, the plaintiffs will allow the suit to be dismissed for non-prosecution, the defendants need not be transposed as plaintiffs. If defendant Nos.3 and 5 are permitted to transpose as plaintiffs, then it would lead to unnecessary confusions. Moreover, they can claim their share over the suit schedule property as a defendant also. Under such circumstances, the trial Court held that it do not find any reason to permit defendant Nos.3 and 5 to transpose as plaintiff Nos.4 and 5.

4. Learned counsel appearing for the petitioners/ defendant Nos.3 and 5 submits that the trial Court had observed that the defendants can be transposed as plaintiffs, if the plaintiffs fail to prosecute the case effectively. Learned counsel submits that when such is the finding of the Court and when the plaintiffs are not prosecuting the matter, the trial Court ought to have permitted the defendant Nos.3 and 5 to be transposed as plaintiff Nos.4 and 5. It is submitted that the Court without considering all these aspects had dismissed the application. In the event if the suit is dismissed for non- prosecution, the defendants will be put to loss and hardship.

5. Learned counsel appearing for the respondents submits that the application filed under Order 1 Rule 10(2) of CPC is not maintainable and further, the trial Court had rightly considered that on an apprehension of the defendants, they cannot be transposed as plaintiffs unless and until substantial cause is shown. He submits that if the plaintiffs fail to prosecute the matter, as this is a suit for partition, the defendants' claim will be considered by the Court and there is no reasons made out from their application for the necessity to transpose them as the plaintiffs and the trial Court had rightly dismissed the application.

6. Having heard the learned counsels on either side, perused the entire material on record. The reason why defendant Nos.3 and 5 wants to transpose themselves as plaintiffs is that if the plaintiffs do not prosecute the matter, it may be dismissed for non-prosecution and then the compensation amount that is lying in respect of item No.1 of the suit schedule property may be withdrawn. The Court cannot pass an order on either of these