IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.580 of 2009 OM PRAKASH SAH, son of late Shivnandan Sah, resident of village – Paharichak, P.O.+P.S. Sonepur, District – Saran. ----- Defendant no.2/Repondent no.6/Appellant. Versus 1. GORAKH SAH, son of late Satya Narayan Sah, resident of village – Paharichak. P.S. Sonepur, P.O. – Sonepur, District – Chapra. -------- Original Plaintiff --------- later on transposed as defendant No. 12A ---------- Appellant ------------- Respondent 1st Party. 2. kardhani Sah, son of late Satya Narayan Sah, resident of village – Paharichak, P.O.+P.S. Sonepur, District – Saran. 3. Abhuram Sah 4. Baliram Sah 5. Manoj Kumar Sah Respondent nos. 3 to 5 are sons of Kardhani Sah resident of village – Paharichak, P.O.+P.S. Sonepur, District – Saran. ---------- originally defendant nos. 8 to 11 later on transposed as plaintiffs -------------- Respondent no. 1 to 4. ----------- Respondent 2nd Party. 6. Kamala Devi, W/o – Braj Kishore Sah and D/o – late shivnandan Sah, resident of Purani Bazar, Dighwara, P.O. + P.S. – Dighwara, District – Saran. 7. Bimla Devi, W/o – Raghunath Sah and D/o – late Shivnandan Sah, resident of – Paharichak, P.O.+P.S. Sonepur, District – Saran. 8. Anju Devi, W/o- Rabindra Sah, D/o – late Shivnandan Sah, Resident of village Kothia, P.O. + P.S. – Jalalpur, district – Saran. 9. Chanda Devi, W/o – Hridaya Narain Sah and D/o – Late Shivnandan Sah, resident of Mirjapur, P.O. + P.S. – Dighwara, District – Saran. 10. Jai Prakash Sah 11. Mahesh Prasad Sah 12. Raj Kumar Sah 13. Sanjay Kumar Sah 14. Shrawan Kumar Sah Respondent nos. 10 to 14 are sons of late Shivnandan sah, resident of village – Paharichak, P.O.+P.S. Sonepur, District – Saran. 15. Renu Devi, W/o – Shiv Kumar Sah, D/o – late Parmeshwar Sah and Grand daughter of late Satnarayan Sah 16. Anita Devi, W/o – Panchanand Sah, D/o – late Pameshwar Sah and grand daughter of late Satnarayan Sah. 17. Sarita Devi, W/o – Gour Prasad Singh, D/o – Late Parmeshwar Sah and grand daughter of late Satnarayan Sah 18. Manju Devi, W/o – Kishore Sah, D/o – Late Parmeshwar Sah and grand daughter of late Satnarayan Sah Respondent nos. 15 to 18 are resident of village – Paharichak, P.O.+P.S. Sonepur, District – Saran. 19. Jugeshwar Singh, son of Late Ram Narayan Singh, resident of village – Paharichak, P.O.+P.S. Sonepur, District – Saran. 20. Ashok Kumar 21. Mukul Kumar Singh - 2 - 22. Ajay Kumar Singh 23. Sanjay Kumar Singh Respondent nos. 20 to 23 are sons of Late Chandreshwar Singh. 24. Dipan Singh, son of late Jagdish Singh 25. Smt. Rukmini Devi, W/o – Mathura Sah 26. Smt. Lalmuni Devi, W/o – Shiv Kumar Sah 27. Smt. Deo Muni Devi, W/o - Ram Janma Sah, Respondent nos. 20 to 27 are resident of village – Paharichak, P.O.+P.S. Sonepur, District – Saran. 28. Uma Shankar, son of Late Babu Lal Sah, 29. Dhaneshwari Devi, W/o – Uma Shankar Sah, respondent nos. 28 and 29 are resident of village – Paharichak, P.O.+P.S. Sonepur, District – Saran. -------- Defendants. --------- Respondents. --------Respondents 3rd Party. --------- Respondents. ******** For the Appellant : Shri S.K. Verma, Adv. Shri Jitendra Kishore Verma, Adv. For the Respondents : Shri Nagendra Rai, Adv. Shri Navin Nikunj, Adv. ******** 05. 20.07.2010 Heard learned counsel for the appellant and learned counsel for the respondents. With their consent the appeal is being finally disposed of. The admitted and peculiar relevant facts is that respondent no.1 Gorakh Sah, had filed suit before trial court seeking partition of several lands, detailed in different schedules claiming 1/4th share therein as early as in the year 1989, subsequently for a substantially long period of about 4 years, he did not prosecute the suit (on the ground of prolong illness as stated before the Lower Appellate Court). Meanwhile, some of the defendants (respondents 2 and 5) got themselves transposed as co-plaintiff and thereafter got the original plaintiff transposed in the category of defendant and again sought amendment in the original plaint, which was filed by the - 3 - respondent no.1 here, and got deleted the lands from schedule of subject matter for partition, whereupon in their written statement, they and other defendants had been denying right of partition to the original plaintiff. By such amendment only those properties were left as subject matter of partition whereupon in fact, there was no contest and all the sides had been accepting 1/4th share of each other. Ultimately, the suit was decreed only thereafter respondent no.1 preferred appeal, wherein, it has been asserted that he fell ill for the relevant period taking undue advantage thereof, the developments aforementioned took place in the suit behind his back. He had got no information, nor was given subsequent notice but ultimately the suit was decreed which could not have been in absence of the properties omitted. The lower appellate court taking into consideration, such developments and materials available arrived at the conclusion that it is a fit case of remand for fresh judgment after giving opportunity to respondent no.1 to be heard on the petition of transposition amendment and also to adduce evidence as per his pleading. This appeal has been preferred by the appellant which figured as defendant in the original suit since before and remained as it is. It is contended by learned counsel for the appellant that the ground for abstination taken by original plaintiff respondent no.1 here was devoid of merit and lack of any proof. - 4 - Moreover, he will be deemed attending the proceeding having knowledge of date to date affairs, but purposely got the suit disposed of, but, when the result was not of his choice preferred the appeal before the Lower Appellate Court, where he must have been denied any sort of leniency. It is also contended by learned counsel for the appellant that even if order of remand was necessary, it could have been for a limited purpose with respect to the properties deleted from original plaint by virtue of amendment after transposition of defendant in the category of plaintiff. The learned counsel for the appellant however placed reliance upon a decision of Apex Court in a case of P. Venkateswarlu v. Motor & General Traders reported in AIR 1975 SC 1409; wherein it has been held in para-2 of the judgment that remittal of whole case by appellate court where finding on separate specific point was required, is illegal. But the above decision is not at all applicable in the instant case as in the case before the Apex Court, the matter, in controversy, was eviction of the tenants on the certain grounds and the question involved therein, the landlord coming in possession of another shop during proceeding of eviction, but here in this appeal, matter is completely different. On the other hand, it is contended by learned counsel for the respondents that the original plaintiff felt ill, under compelling circumstance, could not attend the proceeding of the court, even though, transposition of defendant having conflict of - 5 - interest as co-plaintiff was not permissible. However, during the course of argument, the learned counsels representing the parties conceded to the legal position that to avoid multiplicity of the case complete transposition of the plaintiff in the category of defendant and defendant in the category of plaintiff was permissible, but, in that event, their respective pleadings with necessary amendments shall also take place of plaint and written statement vice versa. It is also fairly conceded during the course of argument that in the event of defendant being transposed in the category, he shall be entitled to make necessary amendment in his written statement giving shape of plaint, wherein, he could have included the land of his choice as subject matter of the suit and at the same time, original plaint on transposition of original plaintiff could have taken place of his written statement. Consequently, on basis of the lands not being subject matter of the suit after amendments would have been basis for challenging right of partition on the ground of partial partition. But in the instant case, defendants having conflict of interest initially got them transposed as co-plaintiff and thereafter got the original plaintiff transposed as defendant just to get the original plaint treated as of their own pleading and subsequently got the pleading of original plaintiff amended as per their choice which was not at all permissible under law. Such type of conduct cuts the very root of subsequent developments of the suit, consequently, all such subsequent - 6 - happening including decision of the trial court acting on such developments are not sustainable. The Lower Appellate Court has rightly set aside the judgment of the trial court and remitted the matter for fresh decision with certain observation and liberty in exercise of its power as contemplated under Order 41 Rule 23 (inserted by Act 104 of 1976) read with Rule 23 both reads as such: “23. Remand of case by Appellate Court – Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, which directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject all just exceptions, be evidence during the trial after remand. 23A. Remand in other cases – Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23.” It is also made clear that the trial court may also exercise its jurisdiction as contemplated under Order 12 Rule 6 of Civil Procedure Code at appropriate stage and pronounce judgment on admission, to the extent, there is no conflict between the parties and proceed with the suit, only with respect to controversial matters (subject matter of the suit) and decide according to materials collected. Order XII Rule 6 of the Civil Procedure Code reads as such: - 7 - 6. Judgment on admissions – (1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions. (2) whenever a judgment is pronounced under sub-rule (1), a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.” The instant appeal is devoid of any merit. Accordingly, this appeal stands dismissed with above liberty and observation, however, there is no order as to cost. Simultaneously, the trial court is directed to proceed expeditiously with suit, disposed it of in the manner directed by the lower appellate court keeping in mind the observation made herein. Rajeev/ (Akhilesh Chandra, J.)