TaxTMI 
TaxTMI 
2019 (7) TMI 2083
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.... 03/2013 for grant of probate in his favour in respect of the registered Will dated 05.04.2000 executed by one Nil Krishna Lahiri. The respondent nos. 1 to 11 have appeared in the aforesaid probate case and have also filed reply raising no objection for grant of probate in favour of the petitioner. However, the other respondents have objected and contested the probate case, therefore, the probate case has been converted into Title Suit No. 05/2014. The petitioner has filed a petition under Order 23 Rule 1 of the C.P.C. on 02.04.2018 and in course of pendency of the aforesaid petition, the respondent nos. 1 to 8 have filed a petition on 24.08.2018 under Order 23 Rule 1-A of the C.P.C. for transposing them as plaintiff and the petitioner as the defendant in the suit. The petitioner has filed rejoinder to the said petition and the trial Court after dealing with the petition under Order 23 Rule 1 as also under Rule 1-A has passed the order on 23.02.2019 rejecting the petition filed for withdrawal of the probate case and transposing the defendants as plaintiffs by taking recourse of Order 13 Rule 1-A, against which, the present writ petition has been filed invoking th....
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.... (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. (4) Where the plaintiff- (a) abandons any suit or part of claim under sub-rule (1), or (b) withdraws from a suit or part of a claim without permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subjectmatter or such part of the claim. (5) Nothing in this rule shall be deemed to authorize the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule(3), any suit or part of a claim, without the consent of the other plaintiffs. 1-A. When transposition of defendants as plaintiffs may be permitted.-Wher....
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....This Court in the light of the aforesaid provision of law has examined the legality and propriety of the impugned order. 8. The admitted facts of this case is that a legatee has been created by one Nil Krishna Lahiri on 05.04.2000 in favour of the petitioner and to probate it, the petitioner has filed a probate case by impleading the respondent nos. 1 to 11 as party to the suit proceeding in which they have appeared and supported the contents of the Will but some of the respondents have objected, therefore, the probate case has been converted into the title suit being Title Suit No. 05/2014. The petitioner, thereafter, has filed a petition under Order 23 Rule 1 of the C.P.C. for withdrawal of the suit but respondent nos. 1 to 8 have also filed a petition on 24.08.2018 invoking the jurisdiction of the Court as conferred under Order 23 Rule 1-A of the C.P.C. and the trial Court by taking into consideration the petition filed under Order 23 Rule 1 as also Rule 1-A filed by the respondent nos. 1 to 8 has passed an order by not granting liberty to withdraw the case on the ground that the same will result in giving go-by to the interest of the respondent nos. 1 to 8 who have w....
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....ire to withdraw the probate case proceeding ignoring the interest of respondent nos. 1 to 8 in the property under the Will for which, they were also entitled in case, the probate is granted after adjudication of the suit. 11. The similar issue fell for consideration before the Hon'ble Patna High Court in the case of Sushila Devi Vrs. Bishwanath Ram, reported in 1992 (1) PLJR 495, wherein it has been held that Order XXIII Rule 1(1) and 1A read with Sections 268 and 295 of Indian Succession Act, 1925 empowers the Court to reject the application of propounder in a probate proceeding for withdrawal of the suit and Court has also authority for transposition of defendants as plaintiff by taking recourse of Order XXIII Rule 1-A. The relevant proposition has been laid down by the Hon'ble Andhra Pradesh High Court in the case of Rapolu Yadagir Vrs. Smt. Rapolu Lakshmamma and Ors., reported in AIR 2003 Andhra Pradesh 300 at paragraph-14 which reads as hereunder:- "14. The suit was filed for partition. There is no much difference in the plaintiffs and defendants. Plaintiff is a defendant and defendant is a plaintiff. At any stage, subject to certain restrictions, if plaintiff a....