TMI Blog2001 (8) TMI 1436X X X X Extracts X X X X X X X X Extracts X X X X ..... uit schedule properties. 3. The suit as contested by the defendants. The fifth defendant in her written statement submitted that she was entitled to a one-sixth share in the suit schedule properties and prayed for partition and separate possession of her one sixth share by paying the necessary court-fee. The first defendant also filed a written statement seeking partition and separate possession of his share by paying necessary court-fee. 4. Eleven Issues were framed on 11-1-1995. Two additional Issues were framed on 31-10-1995 and another two additional issues were framed on 18-8-1997. The parties also let in evidence. The plaintiff was examined as P.W. 1. On behalf of the defendants, D.W. 1 to D.W. 3 were examined. ExP1 to P21 were marked on behalf of plaintiff and Ex.D1 to D36 were marked on behalf of defendants. The matter was posted for arguments. 5. At that stage, a joint memo was filed by the plaintiff and the defendants 2 to 4 stating that they had settled the dispute in a Panchayat. Plaintiff stated that in view of the settlement reached out of Court, he was not pressing the suit and prayed for dismissal of the suit. The counsel for defendants 7 to 9 also signed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , whether in a partition suit, the plaintiff can be permitted to withdraw the suit, or whether a suit can be dismissed as settled out of Court between plaintiff and some of the defendants, when other defendants have also sought partition and separate possession. 9. At the outset it should be noticed that the reason given by the trial Court for rejecting the objection of first and fifth defendant to the memo of the plaintiff for dismissing the suit, is wholly erroneous. The trial Court has held that defendants prayer for partition is a counter claim; and that a counter claim is permissible only in a money suit and not in a partition suit; and therefore the counter claim was not tenable. Firstly, when a defendant in a suit for partition seeks his or her share in property by paying court-fee, such a defendant is not making a 'counter claim' against a plaintiff alone. He is virtually joining the plaintiff in seeking the relief. He is seeking relief for himself not only against the plaintiff, but also the other defendants, The Court below, therefore, fell into an error by treating the written statement in a suit for partition seeking separate possession of the defendants' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly exercise its jurisdiction in favour of the plaintiffs where the interests of the defendants are not adversely affected in any way if the plaintiff are allowed to withdraw the suit. To illustrate, in a partition suit by a sole plaintiff against defendants, the former cannot be allowed to withdraw the suit inasmuch as a defendant having a cause of action against such plaintiff, may be allowed to be transposed as plaintiff in the suit........ Where an application simpliciter has been made under Order 23 Rule 1, the Court cannot compel the plaintiff to proceed with the suit and the defendants cannot be allowed to complain against such order. But where there is an affinity or identity of interests between the plaintiffs and one or more of the defendants, the plaintiffs cannot be allowed to withdraw or to compromise the suit with one of the defendants if an application on behalf of other defendants having an interest in the suit is made for their transposition to the category of plaintiffs and for transposition of the plaintiffs to the category of the defendants under Order 1. Rule 10. 13. The above principle was followed and reiterated B. Pattabhiramayya v. B. Gopalakrihnayy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if any. Similarly when a defendant seeks partition, the relief is sought not only against the plaintiffs, but against the co-defendants also. In other words, each party to a suit for partition, whether a plaintiff or defendant, who seeks the relief of partition and separate possession by paying separate Court Fee, is in the position of plaintiff with reference to all other parties to the suit. When a defendant seeks partition and separate possession of his share, in a suit for partition filed by a plaintiff, the defendant's claim neither a set-off, nor a 'counter-claim' against the plaintiff in the traditional sense, but is one of a wider scope. The Karnataka Court Fees and Suits Valuation Act, 1958 treats a counterclaim and a defendants' claim for partition differently by providing for them under Section 8 and 35(3) respectively and prescribes different types of Court-fee. Therefore, when the defendants in a suit have paid separate Court Fee and sought partition and separate possession of their shares also, the suit cannot be dismissed as withdrawn or settled out of Court by plaintiff with other defendants. 16. The procedure to be adopted by Courts in a partiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suit seeking his or, her share is in the position of co-plaintiff, the Court ought to have permitted the fifth defendant to continue the suit by transposing her as the plaintiff. Even though the fifth defendant did not make any specific application for transposition, it was clear from her objections that she wanted the suit to be continued and specifically pleaded that she was in the position of the plaintiff. In the circumstances, the appropriate course was to direct her to be transposed as plaintiff and then proceed with the matter. 18. In view of the above, we allow the appeal as follows : (i) The order dated 3-2-1998 passed in OS No. 5/1991 on the file of the Civil Judge, Bangalore Rural District (dismissing the suit by accepting the memo of the plaintiff for dismissal) is set aside. (ii) The fifth defendant in the suit is permitted to get herself transposed as a plaintiff No. 2 and the plaintiff is transposed as Defendant No. 10. (iii) The suit by original plaintiff (who is renumbered as plaintiff No. 1 on transposition of 5th respondent) shall stand dismissed as settled out of Court. (iv) The suit with transposed 5th defendant as plaintiff No. 2 shall be conti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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