TaxTMI 
TaxTMI 
2018 (1) TMI 1779
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....issed as not pressed by the original plaintiff and that without reviewing the said order dismissing the suit as not pressed, the plea for transposition cannot be considered. 2. Registry has reported that the conditions in proviso to Rule 51(2) of the Kerala High Court Rules have been duly complied with in respect of service of notice on respondents 3 & 4. Accordingly, it is declared that service of notice on respondents 3 & 4 is duly completed. 3. Heard Sri. Joson Manavalan, learned counsel for the petitioner/fourth defendant, and Sri. R.Mohana Babu, learned counsel for respondents 1 & 2 (defendants 1 & 2). Though notice has been sent to respondents 3 & 4 (defendants 5 & 6), there is no appearance for those parties. It is submitted by the learned counsel appearing for the petitioner that respondents 5 & 6 are defendants 7 & 8 in the Original Suit and they could be deleted from the party array. Accordingly, it is ordered that notice to respondents 5 & 6 will stand dispensed with. 4. The petitioner herein is the fourth defendant in OS No. 77/2009 on the file of the Munsiff-Magistrate Court, South Paravur, Kollam District. The suit was filed for restoring the plaint B sc....
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....in Ramakrishnan v. Thanka reported in [2000 (3) KLT 886], has held that the plaintiff has a right to abandon his suit at any stage, but, if there is any substantial question to be decided in the suit, the court definitely has the power to allow transposition so that the suit can be pursued and further, that abandonment can be either through positive submission or through silence leading to lapse. If one allows his suit to go for default, that will be abandonment by silence. It is also open to him to abandon the suit by making a direct request to the court after due appearance. By stating "not pressed" in the instant case, what the plaintiffs have achieved is actually abandonment of the suit and in such situation, Order XXIII Rule 1A of the CPC would certainly apply. It is also further held that even if Order XIII Rule 1A does not apply, the suit would be restored if it is essential for enabling the petitioner to realize or effectuate his rights under Order XIII Rule 1A of the CPC and his right cannot be defeated by stating that the suit is no more alive. Whether the suit is alive or not, if the suit has to be allowed to be proceeded with as contemplated in Order XXIII Rule 1A and i....
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....donment of the suit and hence O. XXIII R. 1-A of the CPC certainly applies to the facts of this case. 6. Technically speaking, an application under O. IX R. 9 of the CPC can be filed only by a plaintiff; but here is a case where the suit is one for partition and in that sense even the 6th defendant is in the position of a plaintiff. That apart, even if O. IX R. 9 of the CPC does not apply here, the suit can definitely be restored if it becomes essential for enabling the petitioners to realise or effectuate their rights under O. XXIII R. 1-A of the CPC. His right cannot be defeated by stating that the suit is no more alive. Whether the suit is alive or not, if the suit has to be allowed to be proceeded with as contemplated in O. XXIII R. 1-A and if the process of restoration is essential therefore, the court has power to order such restoration even under S. 151 of the CPC. His right under the provision cannot be defeated through technical contentions." 7. Further, this Court has held in the decision in K.K. Abraham v. Joseph Varghese & Another [AIR 2003 Kerala 1] that the application filed by the respondent for transposing himself as an appellant cannot be rejected on th....
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.... the mere ground that the application was filed in an appeal and not in a suit, since as already observed above, the provisions of O. XXIII R.1A read with O.1 R.10 C.P.C.will apply to a proceeding in appeal as well. A respondent in an appeal is entitled to seek himself to be transposed as an appellant, if he satisfies the conditions otherwise. xxx xxx xxx 12. C.R.P. 1870 of 2000 does not call for a separate order. If the petitioner succeeds and if he is permitted to transpose himself as an appellant, then as held by this Court in Madhavan Pillai v. Vasu Pillai (1989 (1) KLT 168) even a party who is declared ex parte is entitled to invoke such a right under O. XXIII R. 1A. Whatever it be once an application for transposition is allowed it will not be necessary to set aside the order declaring him ex parte because his right thereafter is that of an appellant to prosecute the matter." 9. Earlier, this Court in the judgment dated 17.12.1988 in Madhavi Amma v. Sailaja (CRP No. 1683/1988) [1988 (3) Civil CC (Kerala)] has held in paragraph 3 as follows: "3. Order 23 Rule 1(A) governs transpostition of defendants as plaintiffs. This rule provides that whe....
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....to seek transposition under Order XXIII Rule 1A CPC. This Court need not consider the merits of the rival contentions. 13. Sri. R.Mohana Babu, learned counsel for respondents 1 & 2, would also contend that the plea for transposition cannot be allowed at the instance of the petitioner, inasmuch as the petitioner has admittedly purchased the property in question during the pendency of the litigation and without the permission of this Court and that it has been held by the apex court in Bibi Zubaida Khatoon v. Nabi Hassan Saheb & Another [2004 (1) SCC 191] that a tranferee pendente lite without leave of the Court cannot, as of right, seek impleadment as a party in the suit. 14. Per contra, Sri. Joson Manavalan, learned counsel for the petitioner, would contend that so long as the party fulfills the three vital conditions stipulated for consideration of the right under Order XXIII Rule 1A CPC as referred to in para 3 of the judgment of this Court in 1988 (3) Civil CC (Kerala), he is entitled to get his plea for transposition is considered. Further, the petitioner contends that the above arguments of lis pendens transfer has no relevance in the facts of this case. In the instant c....