IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.113 of 2008 YOGENDRA PRASAD & ANR Versus GANESH PD.GUPTA @ GANESH PRASAD & ORS -------- 3 15/1/2009 Heard counsel for the petitioners. In the opinion of this Court the impugned order does not suffer from any jurisdictional error which would warrant an interference by this Court in exercise of power under section 115 of the Code of Civil Procedure. The submission of learned counsel for the petitioner that Order 23, rule 1A of the Code of Civil Procedure envisages such a situation that whenever the plaintiff withdraws himself in a suit or would abandon contesting a suit, the defendants as a matter of right can seek transposition as a plaintiff is a very wide and sweeping submission and infact overlooks the statutory requirement under the aforementioned provisions. The first and foremost requirement for transposition under order 23, rule 1A of the C.P.C would be as to whether in the suit in which defendants seek transposition, a substantial question, has to be decided 2 against any other defendants which will necessary, be in the light of the issues framed in the suit. Here is a case of partition where for some good or bad reason the plaintiff had denied the share of the defendant- petitioner and thereafter the issues remained as with regard to entitlement of share in the partition. In such a situation the submission of counsel for the petitioner that now there is substantial question of title inter-se between the parties is definitely not within the scope of order 23, rule 1A of the C.P.C. Reliance placed by the counsel for the petitioner in this regard on the judgment of this Court in the case of “Md. Muzahid Vs. John Wilson Zedak” reported in 1988 PLJR 857 is also wholly misplaced, in as much as, in paragraph 18 thereof it is pointed out that each case seeking transposition of a defendant in the cantina of plaintiff will depend on facts of each case. In that case from paragraph 12 of the judgment it will be clear that 3 despite withdrawal from litigation by the plaintiff in a suit for specific performance, issue of title between the contesting defendants had still remained open and in fact issues were recast for this very purpose. It was in that background that this Court in Md. Muzahidi’s case(supra) had held that the defendant seeking transposition of the plaintiff ought to have been permitted to contest the suit by taking recourse under order 23, rule 1A of the C.P.C. As noticed above, that is not the position in this case where the suit remained out and out a suit for partition and no issue of title inter-se between the parties was ever sought to be framed or pressed. That being so, this Court would not find any error in the impugned order refusing permission to the petitioner for being transposed as plaintiff. Accordingly, this application is dismissed. (Mihir Kumar Jha, J.) Abhay Kumar