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Judgment
P.K. Misra, J.—Heard the learned counsel appearing for the parties.
This revision has been filed by the original plaintiff in O.S.No.330 of 2000. The suit has been filed for partition. Subsequently, defendant No.2
filed an application for being transposed as plaintiff. At that stage, the plaintiff wanted to withdraw the suit and filed a memo stating that he does not
want to press the suit for the present. The trial court allowed the application filed by the defendant No.2 for being transposed as plaintiff. This is
being challenged by the original plaintiff on the ground that when the original plaintiff does not want to press the suit the second defendant should
not have been transposed as plaintiff.
Order 23 Rule (1-A) of the CPC is as follows:-
Or.23 R1-A: 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Where a suit is withdrawn or abandoned by a plaintiff under Rule 1, and a defendant applies to be transposed as the plaintiff under Rule 10 of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.
Applying the aforesaid provision, the trial court has permitted transposition. The suit is one for partition. It is always open to any of the co-
sharers to claim partition either by filing separate suit or even by filing appropriate claim in the same suit. It is well known that in a suit or partition
every plaintiff is a defendant and every defendant is a plaintiff.
The leaned counsel for the petitioner in this revision submitted that the original plaintiff may be prejudiced as the defendant NO.2 is claiming
partition in respect of the property which belong to the plaintiff alone.
Merely by allowing transposition of the defendant No.2, the claim of the defendant No.2 is not being allowed. The claim of Defendant No.2 who
has been transposed as plaintiff has to be decided in accordance with law and unless it is proved that the particular property is a joint family
property, such property cannot be partitioned. Therefore it would be always open to the original plaintiff to contend that the particular property is
not the joint family property, but it is a separate property of the original plaintiff.
Learned counsel for the revision petitioner further submitted that since the original plaintiff does not want to proceed with the suit, it would be
improper to continue him as plaintiff as such. Since the trial court has permitted the defendant No.2 to be transposed as plaintiff, I direct that the
original plaintiff should now be treated as a defendant. It would be open to the original plaintiff to file written statement.
With the above observation, the revision petition is disposed of. There is no order as to cost. Consequently, connected CMP is closed.