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.