Search Results Page
Search Results
1 - 3 of 3 (0.20 seconds)Md. Muzahid vs John Wilson Zedak And Anr. on 5 July, 1988
5. Mr. Jagdish Sahu, learned counsel appearing on behalf of Petitioner, submitted that the Court below has not properly appreciated the amended provision of Order XXIII, Rule 1-A, which provides that in a case in which the defendants want to proceed with the suit, the Court is duty bound to transpose him as a plaintiff and to proceed with the suit. Learned counsel of the petitioner further submitted that the petitioner cannot be allowed to withdraw the suit, rather the defendant No. 1 has to be transposed as the plaintiff and the present plaintiff as defendant to contest the suit. Learned counsel for the petitioner relied on a decision of Patna High Court Ranchi Bench rendered in the case of Md. Muzahid v. John Wilson Zedak and Anr., reported in 1988 PLJR 857, which according to him has been upheld by the Apex Court in Civil Appeal No. 1810/89. According to him the point involved in this case is squarely covered by the said decision where it has been held that the plaintiff cannot be allowed to withdraw the suit if there is an application for transposition of a defendant as a plaintiff. Learned counsel referred to the amended provision to Rule 1-A of Order XXIII which has been brought by way of amendment and submitted that after the addition of the said provision, the plaintiff has no absolute right to withdraw the suit and the suit has to be continued by allowing transposition of a defendant as the plaintiff, if such prayer is made.
Section 10 in The Code of Civil Procedure, 1908 [Entire Act]
1