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Suits for partition and administratioh='64rcnce. ‑

The two types of suit are totally different JA nature. It caAnot b sod that in every case of partition at the instance of a Muhammadan heir the suit part‑jkes the nature of administration. As it clearly stipulated by the Supreme Court that the distribution of the estates among the heirs is only one of the incidents of an administration suft. The main object underlying the adminI tratinn suit is to have the estate of the deceased administered under the decree of the Court which involves the realisation of the assets, discharge of the costs and legacies and taking of accotintg. Whtreas in a pwtition suit it could tie entirteiy unnecessary to a dertske these exercises Such s suit is only directed towards obtaining separates

possession of a share in the joint property so that the resultant affect to be achieved by the decree is merely change in the mode of enjoyment.

‑‑ O. VII, r. 1 & O. VI, r. 2‑Suit for partition‑Frame of suit purely that of a partition suit and expressly reflected so from prayer clause of plaint‑Even cause of action disclosed in plaint not speaking of any dispute or difficulty having arisen with regard to realization of pro perty or payment of debts or legacies of deceased ‑‑Mere reference in body of plaint without its being relevant to relief sought not determinative of nature of suit as a whole‑Contention that reference in a paragraph of plaint to "amicable division of assets and liabili ties" left by deceased clearly spelt out suit to be in nature of a suit for administration of deceased's assets ‑Held : Every allegation in plaint‑Not part of cause of action unless plaintiff bound to prove same to obtain judgment‑Looking to relief sought in plaint allegation not material to cause of action set out in plaint, obviously relating to defendant's refusal to agree to disposal of some of pro perties jointly held by parties‑Suit simply for partition of joint properties and could not be equated with suit for administration.

Mahboob Alam v. Rata Begum P L D 1949 Lab. 263 ; Mehdi Hussain Shah v. Shadoo Bibi P L D 1963 S C 291 and Khayeratullah Mandal v. Aamala Ranra Saha P L D 1960 Dacca 555 ref.

‑‑ O. XXIII, r. 1‑Withdrawal of suit‑Plaintiff wishing to withdraw his suit‑Cannot normally be forced by Court to prosecute proceed ings‑Court, however, has discretion in exceptional circumstances to refuse termination of proceedings, e.g., where defendant acquired valuable rights, or where plaintiff sued in representative capacity, or where parties arrayed as defendants be also plaintiffs in proceeding;,

Mumtaz Ali v. Pakistan P L D 1971 Lah. 395 1 Sm. Saras Wati Bata Samanta and others v. Surabala Dassi and others A I R 1957 Cal. 57 ; Hullas Rai v. K. B. Bass & Co. A I R 1963 All. 368 and Hassan Badsha v. Roziah Begum A I R 1949 Mad. 772 ref.

Abdul Razzaq v. Muhammad Shah A I R 1962 Mad. 346 ; Narayana v. Gurramma A I R 194 Mad. 364 ; Atma Ram v. Beni Prasad A I R 1935 P C 185 ; Kunni Kombi Achan v. Aman A I R 1932 Mad. 31 ; Muthuralal v. Chiran/tlat A I R 1962 Raj. 109 ; Sethat Achl v. Meyappa A 1 R 1934 Mad. 3 7 and Dewey Khetary v. Hirji Khairaj A I R 1942 Bom. 34 distin guished.

0. XXIII, r. 1‑Withdrawal of suit‑Plaintiff's request for permis sion to withdraw suit sought to be turned down on ground of withdrawal having been sought to avoid appointment of receiver More application logy appointment of a receiver, held, does not create any right in applicant and hence cannot be construed as a hurdle in plaintiff's way to briny an and to litigation by withdrawing from suit.

(a) Civil Procedure Code (V of 1908)‑ > IsML

‑ O. I, r.10‑Transposition of parties‑Court though possesses wide powers for transposition of parties yet such power not exerciseable at instance of a party as a matter of right‑Open to plaintiff to make a counter‑claim in his written statement but no such claim set up‑Pleas raised by defendant to great extent conflicting with those

set out in plaint‑Not possible fov defendant to prosecute suit in form in which brought and pleas set up in plaint‑Defendant chal lenging maintainability of partition suit and pleading proper course for plaintiff to be to file suit for administration‑Defendant in circumstances. held, could not be transposed as plaintiff.

[pp. 942, 943]G & H

Malik M. Saeed for Plaintiff.

Shaikh Haider for Defendant No. 1.

Shabir Ghoury for Defendants Nos. 2 to 7.

Nemo for the Remaining Defendants.

This is an application by the plaintiff under Order XXIII, rule 1, Code of Civil Procedure for withdrawal of suit unconditionally. Defendant No. I has objec:ed to the grant of the application, inter alts, on the plea that the same is misconceived and has been moved malafide, with a view to avoid adjudication of fjisputes between the parties.

The facts are that the plaintiff and defendants 1 to 7 are the sons, daughters and widow of deceased Mahboob Bakhsh who died at Karachi on 26‑3‑1965. The deceased left his estate which devolved upon the aforesaid parties who survived him as his lawful heirs. The estate of the deceased which as set out in the plaint comprised a fractional share in a commercial building known a3 Mahboob Chambers, Saddar, Karachi, 50 % share in another commercial building known as the Azeem Market, N9zimabad, Karachi, two open plots and running business concerns, one at Karachi and one at Lahore.

In one of tae properties, namely, open plot at S3ddar Bazar, Karachi, with some construction defendants Nos. 8 to 13 have 55 % share and have been accordingly joined as pro forma parties.

On 23‑12‑1970, the plaintiff who is the son of the deceased filed the present suit for partition of the joint properties on an allegation that the co‑s :arers except defendant No. 1 who is one of the daughters of the deceased, were desirous of selling their share out of some of the properties but defendant No. 1 refused to permit them to do so anJ raised superfluous objections. This necessitated the filing of this suit.

On 19‑12‑IS72 defendant No. 1 filed written statement contesting the suit and raising several pleas of fact and law. She, however, inter alia averred that the suit for partition was misconceived and that in substance it was a suit for administration. She made a prayer that accounts be taken, assets of the deceased be ascertained and be distributed among the heirs of the deceased according to Muslim Law. It was further contended that the plaintiff and defendants 2 to 7 are in po3bession of the business properties

and income and as such are liable to accoaat, for the .,xMg,A defendant No. 1 and other heirs. Defend ruts 2, 3, 4, 5, 6, 7, 8, '9, 10 to 13 also filed writtW,ptatemeuts. Some of ,tlie‑defendants snpported, lhe' plaintiff and joined ict the prayer trop partition of the joint pr6perty.

Before the issues could be ftamedr ho:vever, the presrnt'application was submitted on 27‑3‑1974 for withdrawal of the suit unconditionally. To ,.this

application o'rjectionswere filed by defendant No. I resisting the paler for withdrawal of the quit arid alleging that the applica=ioa was moved for ulteribra.reasons on accoutlt of the prayer ply defendant No. 1 (or app intrnent of receiver, and for taking of acrc‑ounts. Simulaineously, dei'endart No. I also submitted application iltldi r OrderI, scale 10 read Mto Order I,_ rules 8

and 11 and sedtlon' 151. C. P. C: +aOag'therein that she be transpoted as

the *iikiffion the p"rottnd tryst the plaintiff was avoiding administra;i;ln of

the estato of the d ceased_ ., : ‑;,,t . .‑ ,..,7. '

The learned counsel appearing (or thpY.aar*, have, addressed me at

length. It eras contended by Mr. Malik fv4uhai‑nrnad aeeil for the plaintiff

that the plaintiff has the absoldte ritgbt to give up hiq' cltli‑i 'and' withdraw

the suit and if the defendant No. 1 wanted‑‑the adjudication of 'ber rights,

it was open to her to file a separate sure. Mr. Haid.r Shaikh, on the other

band, vehemently opposed the applicatfbn and contended that the suit in

its nature is a suit for administration of the property of the deceased and

is such the plaintiff, , 669 riot have unliaupered right "to bring a _, end to

the litigation by wit"awing fib ‑ suit. In support of his contention the

learned counsel took me through the ‑'contents of the .pfaint in 'order to show

that the claim fn suit in substan& is for admlhigtratibn of the estate.

Now there is no doubt that Order XXIIf, rule 1, clauoe (3), C. P. C

authorises theplaintiff to withdraw the suit at ar;y time after the inartituzion of the suit Without ;he permission of the Court and the only consequence of such withdraxaNis that he sba:l be liable for such.posts as the Court may award and shah be precluded from instituting, any fresh suit is resneet of such sub;ect‑matter. As a general rule therefore' the plaintiff can do this of s cwn accord .and the order of the Court is not necessary for tho purpose. cwevor; Pt seems that the Couxts have taken the view that plaintiff cannot be .allowed to withdraw the suit so as to deprive the defendant of arty rights that may have accrued to hint. Incidents of such cases are in case of partition where the defendant has become entitled under section 3 of the Partition Ac:t to purchase the plaintiff's share at a valuation to bs fixed by the Court or where in a suit,for partition oir a suit for accounts a preliminary decree has beers passed. In such cages judicial opinion hag lean6d Against giving the plaintiff an absolute right of tcr,uirat;ng the suit by withdrawing it.

Now the =first ques;ibn that falls for consideration fig to determine the real nature of the; stilt Piled' by. the plaintiff. , A9 iitated earlier it<, was oontem‑te:l on behalf of th'e caMesting defendant that the suit ,in sabsiance ia'' a 'stilt for a:3ibinl.tration of the estate of the decease4:and as such the det8ahts fiel tg tE‑e 'lfeh's of next‑of kin of the decewt4 am 1g zthc'__ppsition of plaintiffs : In ,;use of ‑ a== decree"for administration the shall W entitled to relief on‑t<4atribut:ort,of the estate of the deceased acootding ta7 their share qnderM pt#mrradan Law . ...The perusal of the plaantshows theft the cause of action or 1W

girg tile suit was the refusal on she part of the defendant No. 'for ,accou4, her permission rfor selling some of the property to which tt;rrtgies to the suit succeeded. Pxayor clam in the suit is follows

:. (a) Partition,:, of the:*N&ra ef,)tli‑ 4 p1atn'ti1F qtr 06 cxo vrers'iri 04

said properties may be a0'ected with full and complete rights.

(b) If for any reason the properties in suit arts f urd incapable of beirg partitioned, the value of the share of the defendant 1, be determined and assessed sir that the same criuld be paid by the plaintiff jointly or severally with defendants 2 to 7.

Reading tbo body of the plaint along with the relief cl.tuse there is no doubt that this is a suit for partition of joint property. However, the learned counsel made a particular reference to paragraph 6 of the plaint which deals with the date,of the cause o action. In this iara. after referring to tire refusal d the defendant No. 1 to give her consent' to. the disposal of some of the pi:opertirtibe following staterr:tnt has been made

" . . . . . and consequently the plaintiff has to seek legal redress for getting the properties partitioned by invoking the jurisdiction of this Hon'ble Court on the 19th August, 1970, when the d'fendant No. 1 refused to aczede to the request of the: p'airtif for an amicable division of the assets arid liabilities left by the deceased, whose properties the plaintiff and defendants 1 to 7 have inherited"

It was contended by the learned counsel that the reference in h's paragraph to the "amicable division of assets ‑ and liabilities" lift by the deceased clearly spells out that the present suit is in substance a suit to: admini"rataoa of the estate of the deceased. A reference was made iii V:is connection to Mahbwob Alone v. Raata Begurn (1) which related to a suit filed by # sister against filer brothers and sisters . for administration of the cEtate lift by her

t .ther. On a question of the maintainability of the suit having bcen raised y the defendants late ,Justice Kaysni in rln etiligbtening judgment examined the incidents of a suit for administration by a Mchammadan heir, and came to the concl2sion that a suit for administration of the estate of a decrased Mobammadan is competent undex the Civil Proceduro.Code. 'rho argument was based upon the rule of Mobammadan Law that the.: estate left b‑v a Muslin vests immediately upon his death on his heirs and is held by them in specified shares. It was contended that as a necessary corsequence no interest of the deceased survives in the estate so; a3 to administer the eame as hid estate. This contention was repelled and as sated ab.: ve it was held that a suit for administration in such a case was competent in law. In this connection the rule of Mohammadan Law was noticed which stipulates that upon the death of ti Muslim first his funeral ceremony and Burial cspens:;,, neat the discharge of his ju4t debts from the whole of his remaining effects ; then the payment of his legacies out of the third cf what remains after his debts are paid ; and lastly, the digtribu. ti.,n of ‑the residue among his succesmra, is to be made. On the basis of tbis rule it was observed by late Justice Kayani that it thus seems that the disctcibution of the residue among the successors of a deceased person is a duty attached to the estate notwithstanding that it vests in the heirs at the time of the death of be propositus, and as the distribution of the residue fours part of the administration c,f an estate it clearly falip within the province of an administration suit. Cornelius, 1. (as he then was) concurring with Kayani, J. added an observation of his own to the effect that the mere fact of the possibility of the present plaintiff bringing a suit in a different form is ro bar to her adopting the f:rm of an administration suit as permitted by law. Placing his reliance on these passages the learned counsel contended tent there is no distinction betw en a suit filed by a Mohammadan bdir for partition of properties inherited from a deceased and a suit for adminis tra*ion. IW&' isubmissioH, in. my opinion, is wholly uewarrshted. ‑ In Mehdi (1) P L D 1949 Lah. 263

Hwsain Shah v. Shadoo AIN (1) their Lordships elucidated the nature of .administration suit in the following words

"In a suit for administration the relief to be granted is that the estate of the deceased is to be administered under the decree of the Court. This means that the Court will assure the functions of an administrator, it will realise the assets, will discharge debts and legacies, will take an account of the income of the property and will distribute the assets among those entitled to it."

‑The Dacca High Court in the case of Khayeratullah Mondal v. Kamala Banta ,Saba (2) on the other hand, while analysing the nature and scope of a partition suit made the following statement of law

"In determining the nature, characteristics and scope of a partition suit the allegations made by the plaintiff alone must be considered ; the pleas raised by the defendant do not affect the question.

In suits of this nature the plaintiff does not seek to enforce a right to a share in the property on the ground that it is joint property but merely seeks to obtain separate possession of a share therein and thus merely asks for a change in the mode of enjoyment thereof."

aving regard to the above exposition of the scope and characteristics of a suit for partition and a s,iit for administration, it is clear that the two types' of suits are totally different in nature. It cannot be said that in every caiqq of partition at the instance of a Mohammadan heir the suit partakes thel nature of administration. As is clearly stipulated by the Supreme Cour ‑that the distribution of the estates among tire heirs is only one of the incidents of an administration suit. The main objet underlying the administrationls suit is to Lave she estate of the dezea3ed ad:niniatered under the decree on the Court which involves the realisation of the assets. discharge of the debts and legacies and taking of accounts. Whereas in a partition suit it should be entirely unnecessary to undertake these exercises, such a suit is .only directed towards obtaining separate possession of a share in the join property so that the resultant effect to be achievel by the decree is merely

change in the mode of enjoyment. In the light of the aforesaid discussion it is not difficult to see that the[

frame of the present suit is purely that of a partition, suit as is expressl y

reflected from the prayer clause of the suit. Even the cause of actio

disclosed in the plaint does not speak of any dispute or difficulty having

arisen with regard to the realisation of the property or payment of debts B

or legacies of the deceased. A mere reference. in the body of the plaint

without its being relevant to the relief sought in the 90, to division of assets

send liabilities, cannot deteamine the nature of the suit as a whole. Order VI1,

rule 1, C. P. C. requires the pleint to contain among other things the facts

constituting the cause of action and when it arose as well as the relief which

the plaintiff claims. Order VI, rule 2 stipulates that every pleading siall

contain a statcment in a concise form of the material facts on which the

party pleading relies for his claim. The term 'cause of action' refers to

every fact which, if trrversed, it should be necessary for the plaintiff to

prove in order to support his right to judgment, and which if not proved,

gives the defendant a right to judgment. Thus it has been held that every

allegation in the plaint i4 not a part of the cause of action unites the plaintifflC

gl) P L D 1962 S C 291 (2) P L D 1960 Dacca 555

has to pxove the same in order to obtain judgment. The reference to liabilities of the deceased, in the paragraph relating to the accrual of the cause of action, therefore, to my mind, is irrelevant for the present purposes. Looking to the relief sought in the suit, this allegation is not material to th

cause of action set out in the plaint, which obviously relates to the refusal on the part of the defendant No. 1 to agree to the disposal of som‑i of th

properties jointly bold by the parties. Thus, there cannot be any doubt D that the present suit is a suit simply for partition of the joint properties and cannot be equated with a suit for administration. Even the defendant No. 1 in pare. LO of his written statement has categorically pleaded that. the present suit for partition is not maintainable and that the proper course is to institute a suit for administration to enable all the heirs including the plaintiff and defendant No. 1 to take accounts, ascertain assets, to aseertain the income and the expenditure and to distribute all assets and liabilities according to

Muslim Law Lmorg the heir. Therefore, the defendant No. 1 herself did not treat the present suit as a suit for administration and as such cannot he allowed to turn round and plead now that the present suit is in substance a suit for administration.

The only question that now falls for determination is whether the plaintiff has the absolute right to terminate the proceedings by unconditionally withdrawing the suit. I have already stated that normally the plaintiff who

wishes to withdraw the suit cannot be forced by the Court to prosecute the proceedings which he does not wish to continue. In exceptional circum. stances, however, the Court has the discretion to refuse the termination of the proceedings in cases where the defendant has acquired valuable rights e or in cases where the plaintiff has sued in representative capacity so that the withdrawal of the suit would affect the rights of others. or in cases where the parties arrayed as defendants are, also plaintiffs in the proceedings

that a decree in their flavour must necessarily he passed if the suit culminates in judgment. In Mumtaz all v. Pakistan (1) Anwarul Haq, J.

tae his Iordahip then was) while considering the question of withdrawal of a constitutional petition which was opposed by the respondent observed

"If any plaintiff is not seeking permission of the Court to institute a

fresh suit in respect of the same subject‑matter or the cause of action,

then he is at liberty to withdraw the suit at any time in terms of

sub‑rule (1) of rule 1 of Order XXIII. The Court does not apps;r,

in such circumstances, to have any power to compel t1le plaintiff to

continue the suit."

In arriving at this conclusion his Lordship followed Sm. Saras Wati Bata Samanta and others v. Surahala Dassl and others (2). The last‑mentioned case related to a suit for partition by a w‑sharer of several properties. After a protracted hearing of the suit, at the close of the arguments finding that the suit could not possibly succeed, the plaintiff applied for withdrawal

of the suit with a prayer to institute a flesh suit. Tais app:ication was, however, rejected. Thereupon the plaintiff moved a further application

for withdrawal of the suit unconditionally. The learned Judges came to the conclusion that in such a situation. the Court has no discretion in the matter and the plaintiff is entitled to withdraw the suit as a matter of right. In Hullas Fat v. K. B. Bass & Company (31, an extensive review of the relevant

(1) P L D 1971 Lnb. 395 (2) A I R 1957 Cal. 57

(3) A I R 1963 All. 368 _ ,

case‑law was undertaken on the question of right of withdrawal of a

plpintiff under Order XXT11, role 1, C. P. C. This was a fuit by the plaintiff.

firm for rendition of accounts and for a decree in respect of such sums as

they be found' rue from the defendants as its ag‑Int on the I asie of such

Isecounts. '3 'h defendant resisted the suit on the ground that one of the

ialtrera had understood the accounts and a certain sum was found due

0frcm the plaintiff to the defendant. After' framing of issvteslthe plaintiff

filed an application for withdrawal of suit'lrnder Order XXIII, rule t without

seeking leave to file a fresh iuit en qhr name cause of action, The defendant

ohpased the application on the grou d that it was not bona fi e and, theffore,

it should be diRmissed and that a decree" for a ‑sum fauna #jue to him on

tekiag accounts be passed on his paving court‑fed . The trial Couft.

however, ail"' we'd the apnfication for vilthdr:twal and di'smitsed thI'abit.

On revision the Bigh. Court he'd _that the plaintiff bad an absolute right to

* :tld aw tl e shit uncone tionally under Order YXIII: rule 1 in the absence of

a preliminary deerm award mfr tomprcmise or at y adjudication o the rl&ts

of tbes particg. After reviewing the case‑la=,: and eking into consideration

tT'e cats where the Court refused * to termtt the plain tiff to withdraw the

suit, Rarrabhadran, J. pointed out that in all the ceses cited n t uppait of

the suhmiasian that tf a plaintiff does not have the absolute right to withdraw

the suit, either a lveliminary decree had been passed by the Coart, or a

‑the exited or the suit was in a representative capacity. or an award

1hari been made, i e.‑ ‑the basic rights cf the parties toad been decided. ‑ It

was, therefore, concluded that, in this case since none of these factors existed,

;the right to wittrdraw the suit is absolute. The learned Ju:ge even doubted

.the correctness of the view held in Devsey IChestay v. Hirjikhairaj (I) whioh

was a case of partnership and it was heed therein that such suits are of a

pecudar chars: tee and the parties to such suit do not stand to each other

preckely in the same relation as parties to suits generally. It was further

ohwrvea that each of the patties to sa partnership suit, however, he may

be formally ranked, is really in to=n plaintiff and defendant and In both

capacities goes before the Court for the adiudlcation of his rights relatively

to the other partners, which the Court endeavours to determine by its

decree. The learned Judge followed the view held in Hassan Badsha v.

Razlah Begun (2). This was a partition suit in which the plaint distinctly

averred tbat as a division by metes and bounds was not possible the property

might be directed to be sold under Partition Act and the proceeds divided.

When the suit was taken up for trial both. the parties conceded that the

property was incapable of being divided by metes and bounds and that it

should be sold under the provisions of the Partition Act. The defendant

applied to purchase the property under section 3. Subsequently, the

plaintiff filed an application alleging that the property was capable of

convenient division by metes and bounds, thct the statements to the contrary

made in the plaint and before the Court were all due to mistake and that

proceedings sbould be amended by his being allowed to withdraw these

tatemfnt.e. The plaintiff al.o prayed incidenta*ly for the appointment of a

f'r‑mmissicne‑ to inspect the property and report as regards the divisibility

of the property by metes and bcurdg into two shares wit ,out affecting the

value of the other share. A Commissioner was accordingly appointed by

tbf lower Court. The Commissioner reported that the property, as it was,

could not be conveniently divider'. The E'ourt declined to allow the plaintiff

to send his plaint or withdraw the admission made before the .court.

Thereafter the piaintlff applied for leave tp withdraw the suit unconditionally,

(1) A I R 1942 How. 35 (2) A I R 1949 Mad. 772

1977 r SiBAjUUDifi v. ArrruL RAUy t,y KA&ACHt 941

(Zaffar Hussain Mirza, J)

but the 4:ourt below declined to allow the wit'narawal. It was hold by the

High 'ourt that mere admission and concession made by the plaintif i,n

the plaint and before tae Court, did, not give the defendant indefeasible

right to purchase the share of the plaintiff at a valuation to'be fixed by the

Court. By withdrawing the suit unconditionally, therefore, it could not lie

said that the plaintiff would deprive the defendant of any right whicb had.

accrued to him under the Act. This would Lave been too We, if the Court

had made the valuation and made an order that Waif share of t e;plaintlff

should be conveyed to the deimdant on the; valuation, determined by the

Couri. But the stage no reacbed in this litigation was first the de endant

had applied under section 3 for the appointment of a Commissioner for

determinieg the valae and the Commissioatrr had yet to dAermine the value.

It might be that an advantage ;lead accrued to the defendant by reason of

the admissions made in the plaint aA,d before the Court as regards the

impracticabil ty of dividing the property. That, however, did riot clothe

the defendabt with any enforcible right anal di4 not prevent the plaintiff

from exercising the right of a suitor to withdraw his suit at this stag o. ;,

The learned counsel for defendant No. 1 placed reliance on various cases to support .his suhmiss on ‑ that in the present case the defendant is virtually in the position of a plaintiff and should, therefore, be allowed to prosecute the case by his transposition as a plaintiff in the suit. I have already examined the nature of the suit and ire the view that I havo taken to the effect that this suit is sirnply a partition suit it is ditlionlt to agree that the defendant No. I enjoys the capacity of a plaintiff. I shall briefly refer to the decisionq cited at the Bar by the learned counsel. Abdul Razzaq v. Muhammad Shah (1) was relied upon for the proposition that a partition suit by a Muhammadan is in substance an administration suit. I have already pointed out the distinction betweea the two typ.‑s of suits _;nd the present judgment is of no help as no reasons have been assigned for the view held therein. Thto facts in Narayana v. Gurrarnma (2) are distinguishable as that was a case of piomi;sory note and one of the defendants was peer itted to transpose as p'aintiff to continue the suit. It is, however, not clear whether the original plaintiff had scdgM to withdraw from the suit; The neat case ciied was Atma Ram v. Beni prasad (3) in which a suit was brought by the Collector on behalf of his wards under the U. N. Court of Wards Act, and later on was sought to be withdrawn. The application of the widows under wardship to be mc‑de plaintiffs was dismissed. The next: reversioner Beni Prasad also applied td be substituted as a plaintiff but his application ias dismissed on the grou:d that he was not shown as a party tothe suit, and.. it was not shown that th,re 4ad been an arrangement creating deyolution of interest in his favour ddrirg the pende: .cy of the suit. The Pdvy. 'Council field that the learned Subordinate Judge had totally misapprehended the nature of B.‑iii Prasad's application. It was further held that the suit filed on behalf of the widows by fhb Collector was‑ reprttssntative one‑in which Beni Prasad, as nearest reversioner was interested, that a decree properly obtained against the widows would be binding on him as next reversioner. On the other band, if the suit sue ;ceded, his right as the next reversioner of the plaintitt's husband wnuld : he established. It was, therefore, 1‑,eld that in these circumstances, Beni Prasad had a right ex &bito justice to be added as plaintiff and given an opportunity of

(,I,) , A I )t 1962 Mad. 346 (2) A, I R 1948 Mad. 364

(3) AIR 1935 P C 10

continuing the suit if so advised. However, the facts of the present case are totally distinguishable, inasmuch as the present suit has not been filed in a representative capacity and its withdrawal would not in any way affect any other party. Similarly the facts in Kwon Kumbi Achan v. Aman (1) are also distinguishable inasmuch as there also a suit was brought in a representative capacity in which it was held that the plaintiff bad no right to withdraw the name and could be continued by persons in whose interest the suit was brought. In Muthuralal v. Chiranjilal (2) a suit for dissolution of partnership and rendition of accounts was brought and in which a preliminary decree had been passed. Later on the parties filed an application for reference of their disputes to arbitration which was accepted by the Court. At this stage the plaintiff moved for withdrawal of the suit under Order XXIII, rule 2, C. P. C. It was held that in view of these facts withdrawal was not permissible unless consented to by all the defendants. It will be s:en that in this case the defendants bad acquired valuable rights in so far as a preliminary decree had already been passed and a reference was made to arbitration. In Sethai Achi v. Meyappa (3) the suit was compromised by which a stranger was assigned rights, whereupon a petition was moved by the stranger to be impleaded in suit and to pass a decree in terms of the compromise. The plaintiff sought to withdraw the suit. The prayer for withdrawal was disallowed on the ground that the stranger was entitled to be impleaded as a party to the suit as he was the person to whom valuable rights were assigned under the compromise and, therefore, the suit should not be dismissed merely ors the withdrawal of the plaintiff from it. At the cost of repetition I would once again point out that in this case also the plaintiff was refused the right to withdraw because of the fact that by compromise valuable rights had accrued in favour or the stranger. The last, case citmd was Devsey Khatary v. Hirji Khairaj reference to which has already been made. However, this case relates to a suit for dissolution for partnership and accounts which is a suit of entirely different nature from a partition suit.

It will be seen from the above review of the case‑law that the consensus of judicial opinion supports the view that it is the right of the plaintiff to give up his suit by withdrawal and the Court can step in to refuse termination of the proceedings only in special circumstances where some adjudication has been made or valuable rights created in favour of the defendants, in which case the plaintiff cannot be allowed to deprive the defendants of the fruits of litigation by his unilateral act of withdrawal from the suit. In the present case no such circumstances have been pointed out. The only allegation is that the plaintiff is seeking to withdraw the suit to avoid the appointment of receiver. The mere application for appointment of a receiver F does not create any right in the applicant and cannot, therefore, be construed as a hurdle is the way of the plaintiff to bring an end to the litigation by withdrawing from the suit.

It was, however, ampbatically contended that the defendant being a co‑sharer in the properties in the Suit, ire may be permitted to be transposed as plaintiff and the plaintiff be shifted to the array of defendants so that the suit could proceed to final conclusion. There is no doubt that the Court enjoys wide powers for transposition of parties under Order 1, rule 10, 3 C. P. C. but this power cannot be exercised at the instance of a party as aI

(1) A I R 1932 Mad. 31 (2) A I R 1962 Raj. 109

(3) A I R 1934 Mad. 337

matter of right. Ira the present case it was open to the plaintiff to make a counter‑claim in his written statement but no such claim has been set up. The pleas raised by the defendant are to a great extent in conflict with those set out in the plaint. It would, therefore, not be possible for the defendan No. 1 to prosecute the present suit in the form in which it has been brought and the pleas that are set up in the plaint. In Hullas Rai's case, to which reference has been made above, a similar request was mad but was turned down on the ground that the transposition would raise questions of jurisdiction, limitation and court‑fees. It was also found that the nature of the suit would be changed if the defendant vas transposed as the plaintiff. In the present case, als:‑) the defendant has challenged the maintainabilitvt of the partition suit and has pleaded that the proper course for the plaintiff was to file a suit for administration of the estate of the deceased. In the face of such pleas it is not known how the defendant is seeking to be transposed as the plaintiff.

For all the aferesaid reasons I would allow the application of the plaintiff to withdraw the suit and as a result this suit is dismissed as withdrawn. However, since the defendant has contested the suit the plaintiff shall bear the

costs of the defendant No. 1.

s. e. H. Application allowed

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