2000 (10) TMI 980

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....ts placed reliance on O. XXIII R. I -A of the Code of Civil Procedure to contend that where a plaintiff has abandoned a case as done in the present case, the defendant has a right to be transposed as a plaintiff and to proceed with the suit. According to the learned counsel for the revision petitioners O. XX11I RI-A cannot be called in aid after the disposal of the suit. It is also argued that O. IX R. 9 of the CPC cannot be invoked by a defendant to the suit for restoration of the suit The transposition sought for by the 6th defendant was resisted on the ground that the suit is no more alive. 3.O. XXIII R.1-A of the CPC provides as follows: 1 -A. When transportation of defendants as plaintiffs may be permitted:- Where a suit is withdrawn....

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....se, that is also possible, but that does not stand in the way of a defendant working out his rights under O. XXIII R. I - A of the CPC so that unnecessary wastage of time and expenses can be avoided. It is pertinent in this regard that in the instant case the 6th defendant is a party who has already paid court bee for separate allotment of his share. If a fresh suit is directed, she may have to incur the same expense all over again. The suit is already 9 years old and if am fresh suit is directed, probably similar delay may be involved therefore also. 5. The learned counsel for the revision petitioners submits that the dismissal of the suit in the instant case was for the reason not pressed" and that it cannot be taken as abandonment&....