HONOURABLE SRI JUSTICE GHULAM MOHAMMED C.R.P.No.862 of 2011 ORDER The petitioners/plaintiffs 1 and 2 filed O.S.No.291 of 2007 in the Court of I Senior Civil Judge, City Civil Court, Hyderabad, against the respondents/defendants for partition. The said suit was dismissed as not pressed and also withdrawn by the plaintiffs on 23.12.2008 on filing a memo. Aggrieved by the same, respondent Nos.1 to 9 herein i.e., defendant Nos.9 to 19 in the suit, filed I.A.No.6 of 2006 under Section 151 CPC seeking to reopen the suit for limited purpose to entertain I.A.Nos.1018 of 2008 and 757 of 2007 by recalling the not pressed order dated 23.12.2008. Through the docket order dated 09.08.2010, the Court below having observed that the suit for partition cannot be permitted either to be not pressed or to be withdrawn as per law, allowed the said I.A. by setting aside the order of dismissal. Hence, the petitioners filed the present civil revision petition. 2. Respondent Nos.1 to 9 filed counter stating that after filing the suit, the petitioners have obtained ex parte status quo orders in I.A.No.440 of 2007 and highhandedly dispossessed their father from the suit property and as such, their father is a contesting party to the suit. It is stated that after dismissal of the said I.A., their father filed I.A.No.757 of 2007 seeking to restore him the possession of the suit property and during the pendency of the said I.A., he expired leaving behind respondent Nos.2 to 9 herein as his legal representatives. It is stated that after allowing I.A.No.757 of 2007, they filed E.P.No.97 of 2008 for delivery of possession and the same is pending. It is stated that respondent No.10 herein, who remained ex parte in the suit as well as I.A.Nos.440 and 757 of 2007, filed I.A.No.1018 of 2008 seeking to set aside the ex parte order passed in I.A.No.757 of 2007 without seeking to set aside the ex parte order in the suit and I.A.No.440 of 2007. By order dated 26.09.2009, the Court below allowed I.A.No.1018 of 2008. It is stated that as the restoration petition filed by the respondents was allowed and they are contesting the matter, the petitioners to stall the suit proceedings, have not pressed the suit and withdrawn the same. 3. Learned counsel for the petitioners contended that the Court below ought not to have allowed I.A.No.6 of 2009 because at the time of not pressing the suit, I.A.Nos.757 of 2007 and 1018 of 2008 were not pending and that the deceased first respondent is a stranger to their family. He further contended that as the petitioners filed the suit, they have liberty to withdraw the suit. 4. Learned counsel for respondent Nos.1 to 9 while reiterating the averments made in the counter-affidavit, relied upon the judgment of the Supreme Court in DWARIKA PRASAD v. NIRMALA[1] wherein it was held as under: “It is well settled that in a suit for partition of the joint properties every defendant is also in the capacity of the plaintiff and would be entitled to decree in his favour, if it is established that he has the share in the properties. Therefore, the suit for partition of the joint properties, filed by the late father of respondent No.1, could not have been dismissed as withdrawn without notice to another brother, who was also entitled to share in the properties. . In view of the settled proposition of law that in a suit for partition of joint properties, every defendant is also in the capacity of the plaintiff and that partition suit cannot be dismissed as withdrawn without notice to the respondents, I am of the view that the Court below by the order impugned has rightly set aside the order of dismissal as withdrawn. Therefore, I do not find any infirmity in the order impugned warranting interference by this Court. Accordingly, the Civil Revision Petition is dismissed. No costs. ______________________ GHULAM MOHAMMED, J Date:29.07.2011 sj [1] 2010(2) ALT 33 (SC)