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6. Ordinarily plaintiff may abandon a suit or abandon all his claim or part of it as a matter of right without permission of Court: reference may be made of Hulas Rai Baij Nath v. Firm K. B. Bass and Co., AIR 1968 SC 111. It was, however, contended on behalf of the petitioner that since opposite party No. 1 wanted to defeat the right to the petitioner in the property in suit, he should not be allowed to withdraw the suit and in view of Rule 1-A of Order 23, the petitioner should be transposed as plaintiff and opposite party No. 1 should be transposed as defendant 2 in Title Suit No. 206 of 1982. Learned counsel appearing on behalf of opposite party No. 1 submitted that as opposite party No. 2 has executed the sale deed in favour of opposite party No. 1 and as opposite party No. 1 has got the relief which he prayed for in the suit, opposite party No. 1 has right to withdraw the suit. It was also urged that the petitioner cannot be transposed as plaintiff.

7. There are decisions of Supreme Court and different High Courts including this Court (to notice a few) Hulas Rai Baij Nath (supra), R. Ramamurthi Aiyar v. Rajeshwararao, AIR 1973 SC 643; Basudeb Narayan v. Shesh Narayan, AIR 1979 Pat 73; Debi Chand v. Prabhu Lal, AIR 1926 All 582; Loke Nath Saha v. Radha Govirida Saha, AIR 1926 Cal 184. which lay down when a defendant may be transposed as plaintiff if the latter files application under Order 23, Rule 1(1). In a suit for partition, if the plaintiff wants to withdraw the suit, the defendant, if he wants to prosecute the suit should be transposed as plaintiff. The same is the position with regard to suit for accounts by a partner. There is no difficulty in appreciating this proposition as in such suits, the position of all the parties is ihat of plaintiff. Again if a preliminary decree has been passed, the plaintiff should not be allowed to withdraw the suit, and if a right has already vested in defendant, the plaintiff shall not be allowed to withdraw the suit.

17. Rule 1 was substituted by Act 104 of 1976. In the old rule, both the words 'withdraw' and 'abandon' were used. In the new Rule 1, in Sub-rule (1) of Rule 1, the word used is 'abandon' and Sub-rule (3) of Rule 1, the word used is 'withdraw'. Rule 1-A applies to both cases of abandonment and withdrawal. The right of plaintiff to abandon the suit under Rule 1(1) has been left unfettered, but in a case where Court is of opinion that substantial question is to be decided as against any of the other defendants, the defendant who may apply for transposition ought to be transposed as plaintiff and the original plaintiff ought to be transposed as a defendant. The right of plaintiff to walk out of a suit by abandoning it or withdrawing from suit has been curtailed. Before insertion of Rule 1-A, there was no question of transposing a defendant as plaintiff, if the dispute was inter se defendants. But now it is specifically provided that Court shall take into consideration whether there is substantial question to be decided between the defendants inter se. For all these reasons, with respect, I am unable to accept the interpretation of Rule 1-A as held in Jethiben's case (AIR 1983 Guj 194).

19. In the result, this application is allowed, the order passed by the Court below on 11-2-1986 in Title Suit No. 206 of 1982 is set aside so far the prayer of the petitioner to transpose him is concerned. The petitioner shall be transposed as plaintiff in thaf title suit and opposite party No. 2 shall be transposed as defendant 2 in that suit.

20. In view of this transposition, it may be necessary for opposite party No. 1 to bring on record the sale deed dt. 28-7-1984 said to have been executed by opposite party No. 2 in favour of opposite party No. 1. The Court below shall give opportunity to him if prayed for. It shall thereafter dispose of the suit in accordance with law. The Court below shall be entitled to mould the relief. The parties shall bear their own cost.