TaxTMI 
TaxTMI 
2002 (1) TMI 1356
X X X X Extracts X X X X
X X X X Extracts X X X X
....southern side of the property. The first defendant is the father of the revision petitioner herein and the second defendant is his wife. The suit was eventually decreed against which an appeal was preferred by the second respondent herein as A.S. 246 of 1993 and the petitioner herein was the second respondent in that appeal. Petitioner herein was declared ex parte in the said appeal. He filed an application as I.A. 1269/1999 for setting aside the ex parte order. That was filed on 6.12.1999. In para 4 of the affidavit filed in support of the petition, it is averred that the appellant had actually no right over the property and she had already separated from the revision petitioner. Subsequently, the appellant (second respondent herein) filed....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., as the case may be, even after the dismissal of the proceedings - whether it be an appeal or suit. Order XXIII Rule 1A is extracted hereunder: "When transposition of defendants as plaintiffs may be permitted - Where a suit is withdrawn or abandoned by a plaintiff under Rule 1, and a defendant applies to be transposed as a plaintiff under Rule 10 of Order 1, the Court shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants". 5. Revision petitioner contends that the right to file an application for transposition arises either when the plaintiff abandons the suit or when the suit is withdrawn. According to him, ev....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... In this connection, reliance was placed on the decision of the Madras High Court in Govinda Iyer v. Kumar (AIR 1980 Mad 232) wherein it has been held that by virtue of Section 107 and Order XXIII Rule 1A the Court can transpose a respondent as appellant when the appellant seeks to withdraw or abandon the appeal. A similar contention was raised by the contesting respondents in that case. It was contended that Order XXIII Rule 1A of the Code of Civil Procedure will apply only to a suit and not to a Second Appeal. However, repelling the contention the court held that in view of Section 107 CPC procedural provision applicable to suits can also be applied to appeals or second appeals as far as it is practicable. In such circumstances, it was h....
X X X X Extracts X X X X
X X X X Extracts X X X X
....al of the appeal? 10. As could be seen from the provision itself, the word used is 'when the suit is withdrawn or abandoned'. Further, in Ramakrishnan v. Thanka (2000 (3) KLT 886) where a similar situation arose and where the suit was dismissed for non prosecution or because it was abandoned, the application for transposition was filed thereafter, this Court held that in such a situation, the provision under Order XXIII R. 1-A can be invoked by the defendant for transposing himself to be a plaintiff and to continue the proceedings. That was also a case where this Court held that by virtue of the powers under Section 151 C.P.C. when a suit is dismissed as withdrawn and if the Court is satisfied that the defendant can be allowed to....