2001 (8) TMI 1436 - HC - Indian Laws

Summary

Issues Involved:
1. Whether the plaintiff can withdraw a partition suit without the consent of other defendants who have also sought partition and separate possession.
2. Whether the defendants' claim for partition in a suit amounts to a counterclaim.
3. Whether a defendant seeking partition and separate possession is in the position of a plaintiff.
4. The procedure to be followed by the court when a plaintiff in a partition suit seeks to withdraw the suit or settle it out of court.

Issue-wise Detailed Analysis:

1. Withdrawal of Partition Suit by Plaintiff:
The primary issue was whether the plaintiff in a partition suit could withdraw the suit without the consent of other defendants who have also sought partition and separate possession. The court held that in a partition suit, each defendant who seeks partition and separate possession is in the position of a plaintiff. Therefore, the original plaintiff cannot withdraw the suit without the consent of such defendants. The court emphasized that the interests of the defendants should not be adversely affected by the plaintiff's withdrawal, and the defendants should be allowed to continue the suit by transposing themselves as plaintiffs if necessary.

2. Defendants' Claim for Partition as Counterclaim:
The trial court had erroneously treated the defendants' claim for partition as a counterclaim and held that a counterclaim is permissible only in a money suit and not in a partition suit. The High Court clarified that when a defendant in a partition suit seeks his or her share by paying court fees, it is not a counterclaim against the plaintiff alone but a claim for relief against all parties involved. The court cited precedents to establish that a counterclaim is not confined to money suits and can be broader in scope.

3. Position of Defendant Seeking Partition:
The court reiterated that in a partition suit, a defendant seeking partition and separate possession is in the position of a plaintiff. This principle was supported by various judgments, including those from the Bombay High Court and the Supreme Court, which held that a defendant in a partition suit has the same rights as a plaintiff to claim partition. The court emphasized that the manner in which parties are arrayed (plaintiffs or defendants) is not material, and defendants can be transposed as plaintiffs to continue the suit.

4. Procedure for Withdrawal or Settlement of Partition Suit:
The court outlined the procedure to be followed when a plaintiff wants to withdraw a partition suit or settle it out of court:
- Notice of such application or memo should be given to all parties involved.
- If all parties agree to the dismissal or withdrawal, the court may grant the request.
- If any defendant has sought partition and opposes the dismissal/withdrawal, they should be allowed to transpose themselves as plaintiffs and continue the suit.
- Even if no defendant has sought partition till then, the court may permit any defendant to get transposed as a plaintiff and claim partition by paying the necessary court fees.

Conclusion:
The High Court allowed the appeal, set aside the trial court's order dismissing the suit, and permitted the fifth defendant to transpose herself as plaintiff No. 2. The original plaintiff was transposed as defendant No. 10, and the suit was to be continued from the stage at which it was dismissed. The court directed that the matter be disposed of expeditiously, considering the suit was filed in 1990. Each party was to bear their respective costs.