Madhavi Amma vs Sailaja

Radhakrishna Menon, J.—The third defendant in a suit for partition is the revision petitioner.

The order under challenge is one by which the court below has allowed the application of the 20th defendant to get herself transposed as an additional plaintiff. The allegation in the petition is that the plaintiff is not conducting the suit properly and therefore it has become necessary for the petitioner (20th defendant) to get herself transposed as an additional plaintiff. It is relevant in this context to remember that the 20th defendant has no case that the plaintiff has either withdrawn the suit or completely given up the same as to mean that he has abandoned it.

Order 23 Rule 1(A) governs transposition of defendants as plaintiffs. This rule provides that where a suit is withdrawn or abandoned by a plaintiff under Rule 1, and a defendant applies to be transposed as plaintiff under Rule 10 of Order 1, the court shall, in considering such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. The conditions that should be satisfied in order to invoke this provision are: (1) the applicant must be a defendant, (2) the plaintiff must have either withdrawn or abandoned the suit under Sub-rule 1 (of order 23), (3), the applicant - defendant has a substantial question to be decided as against any of the other defendants.

The scheme of this rule is such that all the three conditions must be satisfied in order to grant the relief prayed for in a petition under Order 23 Rule 1(A).

Going by the pleadings, it is clear that the right agitated by the 20th defendant is identical with the right, the plaintiff is agitating in the suit. If that be so, the said right, the 20th defendant is agitating is one that is to be decided as against the other defendants also. The third condition thus stands satisfied. The applicant is a defendant and therefore the first condition also is satisfied. What about the second condition is the question that requires an answer. The answer is that this condition is not satisfied. A reference in this connection to the statements in the application is relevant. It is clear there from that the petitioner has no case that the plaintiff has withdrawn the suit.

Could it then be said that the plaintiff has abandoned the suit. The word ''abandoned'' is not defined. It has therefore, become necessary to define the word. The words ''withdrawn'' and ''abandoned'' are used alternatively. That means the word ''abandoned'' takes colour from the expression ''withdrawn''. ''Withdrawn'' means to remove, from the" files of the court and thus prevent the cause being tried. If that be so, the word ''abandoned'' means to give up with intent of never again resuming one''s right or interest. Going by the pleadings in the petition, it cannot be said that the 20th defendant has a case that the plaintiff has abandoned the suit. On the other hand the inference irresistible from the circumstances is that the plaintiff is not conducting the case in the way in which it should be conducted from the point of view of the 20th defendant. That in my view is not a ground for transposition on the ground that the plaintiff has abandoned the suit.

The Learned Counsel for the 20th defendant, the above position notwithstanding, contended that the word ''abandoned'' in the context means only improper conduct of the suit. In support of this argument he relied on two decisions, (I) of the Gujarat High Court in Jethiben Vs. Maniben and Another, , and the other of the Madras High Court in Dhandayuthan v. Natarajan 1985(1) MLJ 420. The principles enunciated in these decisions in my view have no application here.

Under these circumstances the court below in passing the order must be held to have committed an error of jurisdiction warranting interference with the order.

The order under challenge accordingly is set aside. The C.R.P. is allowed. No costs.