A dismissal as not pressed amounts to abandonment, permitting transposition under Order XXIII Rule 1A of the CPC if substantial questions remain to be decided.

J U D G M E N T

The order under challenge in this Original Petition (Civil) filed enabling the provisions contained under Article 227 of the Constitution of India is one at Ext.P7 dated 24.11.2017 rendered by the trial court concerned (Munsiff-Magistrate Court, South Paravur), whereby the application filed by the petitioner/fourth defendant in the Original Suit for transposition as additional plaintiff has been rejected by the court below on the ground that the plea for transposition cannot be considered. The plea for transposition has been rejected as per Ext.P7 mainly on the ground that the suit has already been dismissed as not pressed by the original plaintiff and that without reviewing the said order dismissing the suit as not pressed, the plea for transposition cannot be considered.

2. Registry has reported that the conditions in proviso to Rule 51(2) of the Kerala High Court Rules have been duly complied with in respect of service of notice on respondents 3 & 4. Accordingly, it is declared that service of notice on respondents 3 & 4 is duly completed.

3. Heard Sri.Joson Manavalan, learned counsel for the petitioner/fourth defendant, and Sri.R.Mohana Babu, learned counsel for respondents 1 & 2 (defendants 1 & 2). Though notice has been sent to respondents 3 & 4 (defendants 5 & 6), there is no appearance for those parties. It is submitted by the learned counsel appearing for the petitioner that respondents 5 & 6 are defendants 7 & 8 in the Original Suit and they could be deleted from the party array. Accordingly, it is ordered that notice to respondents 5 & 6 will stand dispensed with.

4. The petitioner herein is the fourth defendant in OS No.77/2009 on the file of the Munsiff-Magistrate Court, South Paravur, Kollam District. The suit was filed for restoring the plaint B schedule pathway to its original position and to remove the encroachments in plaint B schedule pathway. It is stated that the plaint B schedule pathway is the only way to the plaint A schedule property and that plaint A schedule property belonged to one Sri.Maheswar, the original plaintiff in OS No.77/2009. He settled plaint A schedule property to his son, Sri.Santhosh Maheswar, who got himself impleaded as additional plaintiff in the said suit. It is stated that defendants 3 to 7 are neighboring property owners and that no relief is sought for as against defendants 3 to 7 in the original suit and that reliefs are sought for only as against defendants 1 & 2. Respondents 1 & 2 herein/defendants 1 & 2 in the suit had raised a counter claim to fix the boundary of plaint B schedule pathway and plaint A schedule property. During the pendency of the suit, the additional plaintiff sold plaint A schedule property to the petitioner herein. Thereafter, the additional plaintiff did not press the suit on 18.03.2015. In such circumstances, the petitioner herein/fourth defendant had filed Ext.P5 (IA No.1183/2015) in the said OS to seek himself to be transposed as additional plaintiff in the suit so as to proceed with the suit. The court below has dismissed the said plea as per the impugned Ext.7 order, mainly on the ground that as the suit was earlier dismissed as not pressed on 18.03.2015, the plea for transposition could be considered only if the said order dismissing the suit as not pressed is reviewed. It is this order at Ext.P7 that is under challenge.

5. It is not in dispute that the present OS No.77/2009 was dismissed as not pressed on 18.03.2015 and the case has been posted for evidence in the counter claim. It is thereafter, Ext.P5 application for transposition was filed. The provisions of Order XXIII Rule 1A CPC regulate matters in respect of transposition of parties and the said provision reads as follows:

“Rule 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