Partition suit - Plaintiffs withdraw suit - Compromise with one of the defendant - each defendant in a partition 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
JUDGMENT
1. The appellant herein was the fifth defendant in Original Suit No. 5 of 1991 on the file of the Civil Judge, Bangalore Rural District. First respondent was the plaintiff. Respondents 2 to 9 were respectively defendants 1, 2, 3, 4, 6, 7, 8 and 9 in the suit. For convenience, parties will be referred to by their ranks in the suit.
2. The first respondent (plaintiff) filed the said suit for partition and separate possession of his share in the joint family properties consisting of 19 items of lands described in Schedule A and three items of houses described in Schedule B to the plaint. The said suit was filed against his mother (first defendant), three brothers (defendants 2 to 4) and sister (fifth defendant). Subsequently, defendants 6 to 9 were impleaded on the ground that they were claiming rights over the suit schedule properties.
3. The suit was 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 her 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.Ws. 1 to 3 were examined. Exs. P. 1 to P. 21 were marked on behalf of plaintiff and Exs. D. 1 to D. 36 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 the said memo. The first defendant and the fifth defendant filed objections to the said memo. In her objections dated 17-11-1987, the fifth defendant specifically stated that the memo was filed to defeat her rights and that in a suit for partition, each defendant who seeks separate possession of his or her share is also in the position of a plaintiff and therefore, plaintiff in the suit cannot be permitted to withdraw the suit and thereby deny her legitimate share. After hearing the parties on the said memo, the Trial Court by order dated 3-2-1998 accepted the memo, overruled the objections and dismissed the suit as desired by the plaintiff. The Court below proceeded on the basis that the claim of the fifth defendant for partition and separate possession of her share amounts to a counter-claim, and a counter-claim is only permissible in a money suit and not in a suit for partition and therefore, the objections of the defendants 1 and 5 to the memo for dismissal were not sustainable. Feeling aggrieved, the fifth defendant has filed this appeal.
6. The appellant (fifth defendant) has, in this appeal reiterated her contention that in a suit for partition, each defendant who also seeks partition and separate possession, is in the position of a plaintiff and without the consent of all the plaintiffs, a suit cannot be dismissed and when she objected to the withdrawal of the suit, the Court could not have dismissed the suit as settled out of Court. It is also contended that at all events, even if the plaintiff was not interested in pursuing the suit, the Court ought to have transposed her as the plaintiff and transposed plaintiff as a defendant in the suit and proceeded with the matter.
7. On the other hand, learned Counsel appearing for the respondent 1 (plaintiff) submitted that the plaintiff in a suit is the dominus litis and he has the right and freedom to withdraw the suit filed by him or seek dismissal at any point of time and a defendant has no right to oppose such withdrawal or dismissal. It is also contended that dismissal of the suit would in no way prejudice a defendant in a partition suit as the defendant who wants a partition can always file a fresh suit for partition, and the dismissal of the plaintiffs suit would not in any way affect a defendant's right to file such suit.
8. Therefore, the question that arises for consideration is, 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 defendants to the memo of the plaintiff for dismissing the suit, is wholly erroneous. The Trial Court has held that defendant's prayer for partition is a counterclaim; 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 'counterclaim' 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' share as a counter-claim against the plaintiff. Secondly, the Court also fell into an error in assuming that a counter-claim is permissible only in a money suit and not in any other suit.
10. In Jag Mohan Chawla and Anr. v. Dera Radha Swami Sat-sang and Ors., the Supreme Court has held that a counter-claim is no longer confined to money claims or to a cause of action of the same nature as original action of the plaintiff. This Court, while considering the nature and scope of a counter-claim, as contrasted from a set off, in State Trading Corporation of India Limited, Bangalore v. Vanivilas Cooperative Sugar Factory Limited, Hiriyur, Chitradurga District, 2001(5) Kar. L.J. 570 has held that counter-claim need not be restricted to money suits only. Hence, the ground on which the fifth defendant's objection (to plaintiff's request for dismissal) has been rejected is untenable. Be that as it may. Whether a claim for share by a defendant in a partition suit is a counterclaim is not the issue. The question is whether a defendant seeking a share is also in the position of a plaintiff and whether the original plaintiff cannot therefore withdraw the suit without the consent of the defendant, who is in the position of a plaintiff.
11. In Tukaram Mahadu Tandel v. Ramchandra Mahadu Tandel, AIR 1925 Bom. 425 the Bombay High Court held as follows:
"But there are other and wider considerations which lead me to hold that plaintiff could not have withdrawn so as to defeat the defendants' claim. It is relevant to point out that in a partition suit a defendant seeking a share is in the position of a plaintiff and one plaintiff cannot withdraw without the permission of another".
The Court farther emphasised that though as a general proposition, a plaintiff may at any time withdraw a suit, a plaintiff cannot always in all circumstances withdraw a suit. This was approved and followed by the Supreme Court in R. Ramamurthi Aiyar (dead) by L.Rs v. Raja V. Rajeswararao.,
12. In Smt. Ajita Debi v Musst. Hossenara Begum and Ors., the Calcutta High Court reiterated the following principle:
"In our view, where an application has been made under Order 23, Rule 1 the plaintiff is entitled to withdraw his suit and the defendants cannot be heard to oppose such prayer. But the said legal right of the plaintiffs to withdraw the suit is not unconditional or absolute. The Court can only exercise its jurisdiction in favour of the plaintiffs where the interests of the defendants are not adversely affected in any way if the plaintiffs 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 in Bangaru Pattabhiramayya and Ors. v. Bangaru Gopalakrishnayya and Ors., It was held that if a Court grants permission to the plaintiff to withdraw a partition suit without giving notice to all the contesting defendants, it acts without jurisdiction, as the Court had denied the defendants their lawful right to prosecute the suit by getting transposed as plaintiff. The contention based on the decision of the Supreme Court in Hulas Rai Baij Nath v. K.B. Bass and Company, that there was an unqualified right in a plaintiff to withdraw the suit as dominus litis was rejected by pointing out the exceptions to such right is pointed out by the Supreme Court itself in the said decision.
14. In Manohar Singh v. Mst. Sardar Bai and Ors., a learned Single Judge of the Rajasthan High Court held that in a suit for partition, even the defendants have the same right as plaintiff to claim partition and the manner in which the parties are arrayed as plaintiffs or defendants in the suit is not material; and the defendants can always be transposed as plaintiffs and can continue the suit if they feel that the plaintiff is not continuing the suit in their interest and therefore, in a suit for partition, the plaintiff has no absolute right to withdraw a suit under Order 23, Rule 1 of the Code of Civil Procedure.
15. When a suit for partition is filed, by a member of a joint family, he expresses his unequivocal intention to separate himself from the joint family and consequently there is a severance of joint family status from the date of suit. A suit for partition is invariably brought in respect all the joint family properties. Every person (including female members) who is entitled to a share on partition is impleaded as plaintiff or defendant, having regard to the fact that any decree which gives a property or a portion of a property to a plaintiff, takes away the right of the other members in that property or portion of the property, and non-impleading of the necessary parties will lead to its dismissal. (Where however partition is claimed branch-wise by any particular branch, it may be sufficient if the heads of all the branches are made parties.) In a suit for partition, each defendant is entitled to seek partition and separate possession of his share by paying the specifically prescribed Court fee for such purpose. When a plaintiff seeks partition, he is seeking partition not only against the defendants but also against his co-plaintiff, 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 is 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 counter-claim and a defendant's claim for partition differently by providing for them under Sections 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 partition suit, when a plaintiff wants to withdraw the suit, or when plaintiff wants the suit to be dismissed as settled out of Court with some defendants, can be summarised thus:
(i) When a plaintiff wants a partition suit to be dismissed or withdrawn as settled out of Court, the Court should require notice of such application or memo to all other parties (not only all defendants, but co-plaintiffs if any) and hear the parties. (ii) If all parties are agreeable for the dismissal or withdrawal, the Court may grant the request. (iii) If any defendant has already sought partition and separate possession by paying Court fee and opposes the dismissal/withdrawal, it shall permit such defendant to transpose himself/herself as plaintiff and continue the suit, irrespective of whether he makes an application for transposition or not. (iv) Even if no defendant has sought the relief of partition and separate possession, still then, the Court may in appropriate cases permit any defendant who files an application in that behalf, to get himself transposed as plaintiff and claim partition and separate possession by paying necessary Court fee and continue the suit. Refusal to grant such permission should be for valid reasons to be assigned by the Court.
17. In this case, the suit for partition was filed in the year 1990. The fifth defendant had filed her written statement seeking separation of her share in October 1993 and paid Court fee. Even the first defendant sought separate possession of her share in November 1997. The suit was sought to be withdrawn by the plaintiff after evidence, when the matter was listed for final arguments. While it is true that the withdrawal of the suit by the plaintiff would not bar the fifth defendant from filing a fresh suit for partition, there is no reason why fifth defendant should not be permitted to continue the suit by transposing herself as a plaintiff. But for the fact that the plaintiff had filed the present suit in the year 1990 and the fifth defendant was under the impression that she can get her share also in the said suit (having sought such share in 1993), she might have filed a separate suit long back. Therefore, the fifth defendant was justified in opposing the dismissal of the suit. In view of the objections of the fifth defendant to the memo for withdrawal on the specific ground that each defendant in a partition 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 O.S. No. 5 of 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 plaintiff 2 and the plaintiff is transposed as defendant 10. (iii) The suit by original plaintiff (who is renumbered as plaintiff 1 on transposition of 5th respondent) shall stand dismissed as settled out of Court. (iv) The suit with transposed 5th defendant as plaintiff 2 shall be continued from the stage at which was dismissed, if necessary by permitting parties to let in further evidence, having regard to the changed circumstances. (v) As the suit is of the year 1990, the Court shall endeavour to dispose off the matter expeditiously. (vi) Parties to bear their respective costs.
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