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Judgment
Gautam Kumar Choudhary, J
Plaintiffs filed the Original Suit No.137 of 2017 for partition of the property detailed in the Schedule annexed with the plaint. In pursuance to the notice issued, the defendants appeared, issues were framed and evidence was recorded. The case was at the stage of final argument when the plaintiffs/petitioners preferred the application for withdrawal of the partition suit which has been rejected against which the instant civil miscellaneous petition has been filed.
It is submitted by the learned counsel on behalf of the petitioners that the grounds on which the impugned order is assailed, is that there was inadequate description of the schedule property in the plaint and further there was also some misdescription. Therefore, the application for withdrawal was filed. Reliance is placed on V. Rajendran & Another Vs. Annasamy Pandian (Dead) through Lrs. Karthyayani Natchiar, (2017) 5 SCC 63, wherein permission to withdrawal of the suit was allowed because of the misdescription of the property given in the Schedule of the plaint.
Learned counsel on behalf of the defendants/opposite parties contested the withdrawal application. Law is settled that in partition suit, each party is a plaintiff and in case the original plaintiff does not wish to pursue the case, the defendants can also be transposed. In a suit for partition, all persons who have interest in the subject matter of the suit, are necessary parties. A partition suit is not complete without necessary parties to the suit. This proposition of law is elementary. It appears that when the case was at the stage of conclusion, withdrawal application was filed which was contested by the defendants. The Court has power under Order 1 Rule 10(2) to transfer a defendant to the category of plaintiff. This can be done suo-motu or on the application of any of the defendants. In the case of the difference between co-plaintiff, the proper course is to make an order that the name of one of them be struck out as plaintiff and added as defendant.
I do not find any infirmity in the impugned order. Learned trial Court may proceed by transposing any defendant in the suit as plaintiff.
Civil Miscellaneous Petition accordingly, stands rejected. Pending Interlocutory Application, if any, is disposed of.