THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.R.P No.1342 of 2010 Date:8.11.2010 Between: Margana Ravikumar and another. ……….. Petitioner/defendants 10 & 12. And Margana Srinivasa Rao and others. ……. Respondent/plaintiff. THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.R.P No.1342 of 2010 ORDER: This civil revision petition is directed against the order dated 16.12.2009 in I.A.No.543 of 2009 in O.S.No.35 of 2001 on the file of the IV Additional Senior Civil Judge (Fast Track Court), Visakhapatnam. The brief facts of the case are as follows: The petitioners herein are the defendants 10 & 12 in the lower Court. The 1st respondent herein is the plaintiff. The 1st respondent herein filed a suit for partition. The specific case of the petitioners herein is that the 11th defendant in the main suit filed O.S.No.1182 of 2007 and she is claiming as one of the co-sharer to the suit schedule properties on par with the plaintiff and that she has been sailing with the plaintiff and not opposing the claim of the plaintiff. It is also their case that if she is permitted to continue as defendant along with the petitioners herein and other defendants, any amount of prejudice will be caused to them. The 1st respondent/plaintiff herein filed a counter denying the averments made by the petitioners herein. The lower Court having regard to the specific provision under Order 23, Rule 1-A CPC dismissed the said application. Aggrieved by the same, the present revision has been filed. Smt.Y.L.Shiva Kalpana Reddy, the learned counsel for the petitioners submitted that in view of the pleadings of the parties and since 11th defendant has been supporting the case of the plaintiff, the lower Court ought to have allowed the application. It is also her contention that 11th defendant did not file any counter in the lower Court. The only point that arises for consideration is whether there are any impunged order is sustainable? Order 23, Rule 1-A of CPC is as follows: “1A. When transposition of defendants as plaintiffs may be permitted.—Where a suit is withdrawn or abandoned by a plaintiff under Rule 1, and a defendant applies to be transposed as a plaintiff under Rule 10 of Order I, the Court shall, in considering such application, have due regard to the question whether the applicants has a substantial question to be decided as against any of the other defendants.” A reading of the above provision makes it clear that the conditions for allowing the defendant to be transposed as a plaintiff arise where a suit has been withdrawn by the plaintiff or abandoned by him under Rule 1 of Order 23 CPC. In such a case if one of the defendant applies to be transposed as a plaintiff under Rule 10 of Order I, then the Court having regard to the question whether such defendant has substantial question to be decided as against any of the other defendants may allow such defendant to be transposed as the plaintiff. Admittedly, such contingency did not arise in this case, the plaintiff has not withdrawn the suit or abandoned under Rule 1, Order 23. Merely because in a partition suit, one of the defendant is sailing with the plaintiff or has admitted the claim of the plaintiff it does not mean that such defendant has to be trespassed as a co-plaintiff and it is not the purport of Order 23, Rule 1A CPC. However the interest of the parties can be protected by directing the 11th defendant to cross- examine the plaintiff witness before other defendants cross-examine those witnesses. However, the petitioners may make a request the court to direct the 11th defendant to adduce evidence and cross examine the plaintiff before they adduce evidence and cross examine the witness of the plaintiff and the lower Court may pass necessary orders in accordance with law. The lower Court having regard to the said provision has passed a reasoned order, I do not see any illegality or irregularity in the order passed by the lower Court and there are no merits in the civil revision petition. Accordingly, the Civil Revision Petition is dismissed. No order as to costs. ______________________ Justice B.Chandra Kumar Date:08.11.2010 mrb