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Smart Summary

Factual and Procedural Background

These are two revision applications against the order of the learned District Judge dated 9th Phagan, 2008. Gulam Mohd. Sheikh filed a suit for partition and rendition of accounts, alleging that a relinquishment deed executed by him on 23rd Sawan, 2005 was fraudulently obtained and sought cancellation. The suit named Ahmad Sheikh (defendant No. 1), Rehman Sheikh (defendant No. 2), Maala Bibi (defendant No. 3) and Asha Bibi (defendant No. 4). Defendants Nos. 1 and 2 contended the plaintiff had no right as he had relinquished his share; defendants Nos. 3 and 4 claimed a share in their father's property. On 26th Magh 2008 defendants Nos. 3 and 4 applied that defendants Nos. 1 and 2 intended to compromise and that their names should be transposed as plaintiffs. On 29th Magh 2008 the plaintiff applied to withdraw the suit. The applications were heard on 7th Phagan and on 9th Phagan the trial court accepted the plaintiff's application, passed a decree in terms of the compromise between the plaintiff and defendants Nos. 1 and 2, remarked the decree would not affect the rights of defendants Nos. 3 and 4, ordered defendants Nos. 3 and 4 may be transposed as plaintiffs and allowed the suit to proceed. Ahmad Sheikh (defendant No. 1) filed a revision application and the plaintiff filed a separate revision application; both are disposed of by this order.

Legal Issues Presented

  1. Whether the trial court, having passed a decree in terms of a compromise between the plaintiff and defendants Nos. 1 and 2, could thereafter transpose defendants Nos. 3 and 4 as plaintiffs in the same suit.
  2. Whether the trial court could permit the plaintiff to withdraw from a partition suit in which other defendants (defendants Nos. 3 and 4) claimed a share, and under what circumstances transposition of parties is appropriate in partition suits.

Arguments of the Parties

Applicants' Arguments

  • Counsel for the applicants pointed to the District Judge's remarks recording a compromise-deed styled as an application for withdrawal and argued that, since a decree had been passed in the suit filed by the plaintiff in terms of that compromise, the court could not thereafter transpose defendants Nos. 3 and 4 as plaintiffs in the same suit.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
SEETHAI ACHI v. MEYAPPA CHETTIAR, AIR 1934 Mad 337 The view that in partition suits, if a preliminary decree has declared and defined shares, the suit should not be dismissed merely because of a subsequent withdrawal by the plaintiff, so as to protect rights declared by the preliminary decree. The court cited this authority for the proposition that partition suits present exceptions to automatic dismissal on withdrawal, but applied the test from the opinion to conclude transposition was not appropriate in the present case.

Court's Reasoning and Analysis

The Court first observed that the trial court had passed a decree in terms of the compromise between the plaintiff and defendants Nos. 1 and 2 and that, once the decree was passed, the trial court had no jurisdiction to proceed in the same suit by transposing defendants as plaintiffs and plaintiffs as defendants. The Court then analysed the general rule and exceptions on withdrawal: ordinarily a suit is dismissed after a plaintiff's withdrawal, but exceptions exist in partition, account and partnership suits where the court may transpose parties to protect vested rights. The proper test is whether the defendant will be prejudiced because he cannot obtain effective redress in a separate suit without legal impediment; mere inconvenience or additional expense does not prevent dismissal or withdrawal. Applying that test, the Court found defendants Nos. 3 and 4 had independent rights in the property and no legal impediment to seek redress by a separate suit; the possibility of additional expense did not justify denying withdrawal. On that basis the District Judge was held incorrect in transposing defendants Nos. 3 and 4 as plaintiffs in the suit.

Holding and Implications

The revision applications are allowed and the order of the District Judge transposing defendants Nos. 3 and 4 as plaintiffs is vacated.

Direct consequences: the order transposing defendants Nos. 3 and 4 is set aside; defendants Nos. 3 and 4 remain free to file a separate suit for their share in the property. The Court left the parties to bear their own costs in this Court. The opinion does not assert the creation of a new precedent beyond applying established principles for withdrawal and transposition in partition suits.

    Ghulam Mohd.Sheikh v. Ahad Sheikh And Others

    These are two revision applica­tions against the order of the learned District Judge dated 9th Phagan, 2008 and arise out of the following circumstances.

    (2) Gulam Mohd. Sheikh filed a suit for parti­tion and for rendition of accounts and he fur­ther alleged that relinquishment deed executed by him on 23rd of Sawan, 2005,was fraudu­lently obtained and may be cancelled The suit was brought against his two brothers, Ahmad Sheikh defendant No. 1 and Rehman Sheikh, defendant No. 2 and his' sisters Maala Bibi defendant No. 3 and Asha Bibi, defendant No. 4. The defendants Nos. 1 and 2 resisted the suit on the ground that the plaintiff had no right left in the property as he had relin­quished his share by the deed which he exe­cuted on 23rd Sawan 2005. Defendants Nos. 3 and, 4 claimed a share in the property left by their father. On 26th Magh 2008 defendants Nos. 3 and 4 made an application before the trial court stating therein that defendants Nos. 1 and 2 intended to compromise the suit with the plaintiff and their names should be trans­posed as plaintiffs in the case. On 29th Magh 2008, the plaintiff put in an application before the court for the withdrawal of the suit. The application of the plaintiff and of the defen­dants 3 and 4 came up /or hearing on the 7th o& Phagan. 2008, and the court heard the parties at length in regard to their respective applica­tions. On the 9th Phagan the court accepted the application of the plaintiff and passed a decree - in terms of the, compromise arrived at between the plaintiff on the one hand and de­fendants Nos. 1 and 2 on the other. It was remarked by the trial court that the decree will not affect the rights of defendants Nos. 3 and 4. The Court ordered that defendants 3 and 4 may be transposed as plaintiffs in the suit and allowed the suit to proceed. Against this order Ahmad Sheikh defendant No. 1 has preferred a revision application and a separate revision application has been filed by the plaintiff. These revision applications will be disposed of by this order.

    (3) The counsel for the applicants have drawn my attention to the following remarks of the learned District Judge in his judgment: 1 "To-day the statements of the plaintiff and defendant Nos. 1 and 2 and the counsel for the defendant Nos. 1 and 2 were recorded on the back of the application, which in fact is a compromise deed, but is styled as an application for the withdrawal of the suit. This alleged withdrawal application is signed by both the plaintiff and the defendants Nos. 1 and 2. The plaintiff has admitted that the FARKHATI executed by him in favour of the defendants Nos. 1 and 2 was a correct one and that the defendant Nos. 1 and 2 had agreed to pay him Rs. 5000/- as mentioned in First FARKHATI. There is also a stipula­tion about the transfer of the immoveable property, which is a portion of the suit pro­perty.

    Therefore it is evident that the plaintiff and the defendants Nos. 1 and 2 have com­promised the dispute. As the plaintiff wants to withdraw from the suit and has compro­mised the dispute with defendants Nos. 1 and

    2 and attest it, therefore, the decree in terms of the compromise so far it does not affect the rights of defendants Nos. 3 and 4 is passed in favour of the defendants Nos. 1 and 2 and the plaintiff,"

    and has argued that the decree having been passed in the suit filed by the plaintiff it was not open to the court to transpose defendants Nos. 3 and 4 as plaintiffs in the same suit which was pending but had been decreed by the trial Court.

    (4) There appears to be a good deal of force in this contention. The suit in which the defendants Nos. 3 and 4 made an application that they may be transposed as the plaintiffs was decided by the trial Court by passing a decree in terms of the compromise and that Court had no jurisdiction after the decree was pass­ed in the suit to proceed in the same suit by transposing defendants as plaintiffs and the plaintiffs as defendants.

    (5) The next question for consideration is whether or not the trial Court could permit the plaintiff to withdraw from a partition suit in which defendants Nos. 3 and 4 had also claimed some share in the property in dispute. Ordinarily when the Court finds no impediment t the dismissal of a suit after the announcement of the withdrawal of the claim by the plaintiff will simply dismiss the suit of the plaintiff which he has withdrawn but there are some exceptions to this rule as have been recognisec in partition suits, account suits and partner­ship suits. In these suits, if the plaintiff in­tends to withdraw from the suit the Court may not dismiss the suit merely because the plain­tiff has withdrawn from the suit, it will trans­pose the defendants who have vested rights as plaintiffs and the plaintiffs as defendants in the suit and allow the suit to proceed. The Court has to see whether or not the defendant will be. prejudiced if the plaintiff is allowed to withdraw from the suit. In other words, the Court has to determine that if the plaintiff is allowed to withdraw from the suit whether the defendant will be able to seek his remedy in a separate suit without any legal impedi­ments. This is the test which has to be applied by the Court in a partition, partnership or account suit in determining whether the plaintiff should or should not be allowed to withdraw from the suit. Mere inconvenience to a defen­dant would not justify the Court to disallow the plaintiff from withdrawing the suit. Ap­plying this test to the present suit, it will be clear that the defendants have their indepen­dent right in the property' left by their father. There is no legal impediment to defendants Nos. 3 and 4 to claim their share in the pro­perty left by their father by a separate suit. It is true that they may have to incur slight additional expense in bringing a separate suit but that by itself would not justify the Court from withholding the permission to the plaintiff to withdraw from the suit. In suits for I partition, if a preliminary decree is passed declaring and defining the shares of the several parties, the suit will not be dismissed |by reason of any subsequent withdrawal |by the plaintiff, for the obvious reason that (the rights declared in favour of defendants under the preliminary decree would be rendered nugatory if the suit should simply be dismissed. The same view has been taken in 'SEETHAI ACHI v. MEYAPPA CHETTIAR', AIR 1934 Mad 337. I am, therefore, of opinion that the District Judge was not correct in transposing the defendants Nos. 3 and 4 as plaintiffs in the suit. The defendants Nos. 3 and 4 can, if they are so advised, file a separate suit for their definite share in the property left by their father.

    (6) In these circumstances, I allow these ap­plications and vacate the order of the District Judge transposing defendants Nos. 3 and 4 as plaintiffs in the suit. In view of the peculiar circumstances of this case I leave the parties to bear their own costs in this Court.

    B/K.S.

    Order set aside.

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    Comments

    Ghulam Mohd.Sheikh v. Ahad Sheikh And Others
    (Jun 6, 1952)