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1 - 10 of 17 (1.47 seconds)Bijayananda Patnaik vs Satrughna Sahu And Others on 26 March, 1963
Another decision of the Supreme Court to which learned counsel drew attention is in the case of Bijayananda Patnaik v. Satrughna Sahu (AIR 1963 SC 1566). There the question was of withdrawal of an election appeal-The learned Judges held that it could be allowed to be done on the strength of Order 23, Rule 1 (1) of the Code which grants a plaintiff an absolute right to withdraw a suit unconditionally. There are however, a few other decisions which may be relevant to the present discussion.
Sm. Saraswati Bala Samanta And Ors. vs Surabala Dassi And Ors. on 12 January, 1956
In the case of Sm. Saraswati Bala Samanta v. Surabala Dassi (AIR 1957 Cal 57) there was a partition suit in which at the close of the argument the plaintiff having found that he could not succeed, applied for withdrawal of the suit The suit was allowed to be withdrawn and said to amount to dismissal for non-prosecution. In this respect the learned Judges said that where the plaintiff desires to withdraw the suit and does not want permission to institute a fresh suit, he is at liberty to do so under Rule 1 of Order 23 of the Code, and by this withdrawal he is precluded from instituting a fresh suit, but the withdrawal does not amount to a dismissal for non-prosecution.
Hasan Badsha, Minor By His Father And ... vs Sultan Raziah Begum, Minor By Her Father ... on 2 February, 1949
In the case of Hasan Badsha v. Sultan Raziah Begum (AIR 1949 Mad 772) Viswanatha Sastri, J. held that the right of withdrawal is subject to the condition that the defendant has not obtained a valuable right by reason of anything done such as compromise on prelimisary decree during suit till application for withdrawal. This was also a suit for partition. In this case the property was held to be incapable of division and thus the defendant had applied for purchasing the same under Section 3 of the Partition Act. It was held that no right had accrued on that account and thus the plaintiff could withdraw the suit.
V.E.A.R.M. Annamalai Chettiar vs Koothappudayar And Ors. on 19 October, 1932
In the case of V.E.A.R.M. Annamalai Chettiar v. Koothappudayar (AIR 1934 Mad 485) a learned single Judge of that Court held that in partition suits the power of the plaintiff to withdraw has been limited to this extent only that it can be exercised only till a right in the defendant in the continuance of the suit or its determination in a particular way has been legally created, as for example, by a preliminary decree or a compromise or agreement or award.
Hulas Rai Baij Nath vs Firm K. B. Bass & Co on 3 May, 1967
10. Reverting to the point for decision in this case it appears that in the case of M/s. Hulas Rai Baij Nath (AIR 1968 SC 111) (supra) it was a suit for rendition of accounts filed by the principal against his agent. Issues had been framed there and some evidence had been recorded but no preliminary decree for rendition of accounts had been passed. There was no prayer for permission to file a fresh suit under Sub-rule (2) of Rule 1 of Order 23 of the Code, nor any counter claim was made for set off. In such circumstances their Lordships held that the plaintiff had a right to withdraw the suit. On the basis of this decision counsel for the petitioners in the present case urged that the principle of law to be deduced from this decision is that where a preliminary decree has not been passed, and in that respect a partition suit is similar to a suit for accounts -- the suit can be withdrawn by the plaintiffs under Sub-rule (1) of Rule 1 of Order 23 of the Code.
R.S. Madanappa And Ors vs Chandramma And Anr on 5 March, 1965
15. That brings me to the next point as to whether it was justified in transposing the intervenor defendant to the category of plaintiff. In this respect the law is more than clear. There is no bar in law to a defendant asking to be transposed to the category of the plaintiff provided the claim is founded on the same cause of action. In a suit for partition, whether it be plaintiff or defendant, the cause of action is the same. It is said that there was no objection to the impleading of the intervenor defendant Parmila Devi. In this connection, however, it has been pointed out that she claims to be a daughter of Mahendra, but that claim is denied by the other parties. That makes little difference. It can happen in any similar case of a pro forma defendant, who may claim to be entitled to a share,
It is well settled that if it is necessary for a proper adjudication of the real controversy in suit, the court may, acting under Order 1, Rule 10 (2) of the Code, add or strike out parties or transpose them from one category to the other (see R. S. Maddanappa (deceased) v. Chandramma, AIR 1965 SC 1812 and Bhupendra Narayan Sinha v. Rajeswar Prosad, Bhakat, AIR 1931 PC 162). In the last case the Privy Council said that the course of adding pro forma defendants as co-plaintiffs should always be adopted where it is necessary for a complete adjudication upon the questions involved in the suit and to avoid multiplicity of proceedings. In this view of the matter, the court below had the jurisdiction to decide as to whether or not Parmila Devi should be allowed to be transposed to the category of the plaintiffs and the plaintiffs to the category of defendants. The court below has decided it in favour of the intervenor defendant. It cannot, therefore be said that the order in this respect suffers from want of jurisdiction or illegal exercise thereof,
Raja Bhupendra Narayan Sinha vs Rajeswar Prosad Bhakat on 24 March, 1931
15. That brings me to the next point as to whether it was justified in transposing the intervenor defendant to the category of plaintiff. In this respect the law is more than clear. There is no bar in law to a defendant asking to be transposed to the category of the plaintiff provided the claim is founded on the same cause of action. In a suit for partition, whether it be plaintiff or defendant, the cause of action is the same. It is said that there was no objection to the impleading of the intervenor defendant Parmila Devi. In this connection, however, it has been pointed out that she claims to be a daughter of Mahendra, but that claim is denied by the other parties. That makes little difference. It can happen in any similar case of a pro forma defendant, who may claim to be entitled to a share,
It is well settled that if it is necessary for a proper adjudication of the real controversy in suit, the court may, acting under Order 1, Rule 10 (2) of the Code, add or strike out parties or transpose them from one category to the other (see R. S. Maddanappa (deceased) v. Chandramma, AIR 1965 SC 1812 and Bhupendra Narayan Sinha v. Rajeswar Prosad, Bhakat, AIR 1931 PC 162). In the last case the Privy Council said that the course of adding pro forma defendants as co-plaintiffs should always be adopted where it is necessary for a complete adjudication upon the questions involved in the suit and to avoid multiplicity of proceedings. In this view of the matter, the court below had the jurisdiction to decide as to whether or not Parmila Devi should be allowed to be transposed to the category of the plaintiffs and the plaintiffs to the category of defendants. The court below has decided it in favour of the intervenor defendant. It cannot, therefore be said that the order in this respect suffers from want of jurisdiction or illegal exercise thereof,