Transposition in partition suits can follow plaintiff abandonment, and restoration may be ordered to preserve substantive rights.

A defendant in a partition suit may be transposed as a plaintiff under Order XXIII Rule 1-A CPC when the original plaintiffs withdraw or abandon the suit, including where dismissal is recorded as not pressed, if a substantial question remains to be decided against other defendants. Because each sharer in a partition action effectively occupies the position of a plaintiff for working out partition relief, abandonment by the original plaintiffs does not bar continuation by an interested defendant. The court may also restore the suit to file to give effect to that transposition right, including by invoking Section 151 CPC where necessary to prevent defeat of substantive rights on technical grounds.

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Issues: (i) Whether a defendant in a partition suit can be transposed as a plaintiff after the original plaintiffs abandon the suit and the dismissal is recorded as not pressed. (ii) Whether the suit could be restored to file to enable such transposition and continuation of the proceedings.

Issue (i): Whether a defendant in a partition suit can be transposed as a plaintiff after the original plaintiffs abandon the suit and the dismissal is recorded as not pressed.

Analysis: Order XXIII Rule 1-A of the Code of Civil Procedure applies where a suit is withdrawn or abandoned by the plaintiff and permits a defendant to seek transposition as a plaintiff if there is a substantial question to be decided against the other defendants. In a partition suit, each sharer has the position of a plaintiff for the purpose of working out the relief of partition. The fact that the suit had been dismissed after being not pressed did not prevent the application of the rule, since that amounted to abandonment by the plaintiffs.

Conclusion: The transposition of the 6th defendant as a plaintiff was held to be permissible, and the plaintiffs who abandoned the suit could be transposed as defendants.

Issue (ii): Whether the suit could be restored to file to enable such transposition and continuation of the proceedings.

Analysis: Although Order IX Rule 9 technically contemplates an application by a plaintiff, restoration could still be ordered where it was necessary to give effect to the right under Order XXIII Rule 1-A. The Court also recognised that the suit could be restored in exercise of inherent power under Section 151 of the Code of Civil Procedure to prevent defeat of substantive rights on technical grounds.

Conclusion: Restoration of the suit to file was upheld as necessary and proper.

Final Conclusion: The revision petition failed, and the orders permitting transposition and restoration of the partition suit were maintained, with consequential liberty to amend pleadings and contest the suit in the altered array of parties.

Ratio Decidendi: In a suit withdrawn or abandoned by the plaintiff, a defendant may be transposed as a plaintiff under Order XXIII Rule 1-A of the Code of Civil Procedure where a substantial issue survives, and the court may restore the suit, if necessary, to effectuate that right even by invoking inherent powers.

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