A.No.3791 of 2023 in CS No.801 of 2016

A.A.NAKKIRAN, J.

This application has been filed by the applicant/2nd defendant to transpose the

2nd defendant as plaintiff in the suit.

2. The learned counsel for the applicant/2nd defendant submitted that

originally, the suit has been filed by the 1st respondent/plaintiff for the relief of

partition and after filing the written statement, the suit is ripe for trial. Meanwhile,

few mediations took place between both the parties and since there was no consensus

arrived, the suit was referred back to this Court, On 25.04.2023, the 1st

respondent/plaintiff through his counsel represented that he is going to withdraw the

suit and not interested to prosecute the suit. The applicant/2nd defendant has also

raised serious objection for withdrawing the suit on the ground that the suit is one for

partition, where the plaintiff is the defendant and the defendant is the plaintiff and

therefore, the suit cannot be simply allowed to be withdrawn. The applicant/2nd

defendant is residing overseas at Austrialia and he is unable to personally appear

before this Court and hence, he has come forward with the present application to

transpose the 2nd defendant as plaintiff in the suit.

3. The learned counsel for the 1st respondent/plaintiff submitted that this

application is not maintainable and hence, he strongly opposes to allow this

application and prays to permit the 1st respondent/plaintiff to withdraw the suit.

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4. The learned counsel for the 2nd respondent/1st defendant submitted that the

suit is pending adjudication on the file of this Court and the plaintiff has till date not

filed any memo of withdrawal before this Court withdrawing his suit nor abandoning

his claim. Such being the case, the filing of an application for transposition is not only

presumptuous, mistaken and not maintainable. A perusal of Order XXXIII Rule 1A

reveals that an application for transposition can be filed in two contingencies; firstly,

when the plaintiff withdraws the suit or secondly, when the plaintiff abandons the

suit. In other words, there is no question of transposition in a presupposed or

presumed eventuality, that the suit would be either withdrawn nor abandoned. He

further submitted that the 2nd defendant in para 2 of his written statement stated that

"the suit against the 2nd defendant is not maintainable either in law or on facts and is

liable to be dismissed in limine...", whereas in para 11 of the written statement it is

stated that "this Court may be pleased to pass a preliminary decree for partition as

prayed for in the plaint taking into consideration the solemn wishes of L.M.Noronha,

both in the Last Will and Testatment dated 28.08.2008 and the Sworn Affidavit dated

01.03.201"'. To the Contrary, he has come forward with the present application to

transpose him as plaintiff is merely a dilatory tactic to delay the proceedings and

hence this application is liable to be dismissed.

5. Admittedly, it is a suit for partition and the plaintiff intends to withdraw the

suit. Moreover, the 2^nd defendant admitted in his written statement that a preliminary

decree for partition may be passed. In such circumstances, this Court is inclined to

allow this application.

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6. The learned counsel for the applicant/2nd defendant submitted that the keys

of the suit property are with the plaintiff and prayed to hand over the keys to the 2nd

defendant.

7. Accepting the submissions made by the learned counsel for the

applicant/2nd defendant, this Court is inclined to direct the 1st respondent/plaintiff to

hand over the keys of the suit property to the 2nd defendant.

8. For carrying out necessary amendment and filing amended plaint copy, post

on 26.09.2023.

14.09.2023

uma

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A.A.NAKKIRAN,J

uma

A.No.3791 of 2023 in

C.S No.801 of 2