IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TWENTIETH DAY OF AUGUST TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Revision Petition No.2876 of 2007 Between: S. Jaihind .. Petitioner AND S. Muralidhar and others .. Respondents ORDER: The Civil Revision Petition is directed against the dismissal of I.A.No.3 of 2007 in O.S.No.33 of 1999 by the Vacation Civil Judge, City Civil Court, Hyderabad, on 11-05-2007. O.S.No.33 of 1999 on the file of the IX Additional Chief Judge, (Fast Track Court), City Civil Court, Hyderabad, is a suit for partition and I.A.No.229 of 2007 was filed by the plaintiff therein to advance the suit from 07-06-2007 to 01-05-2007 and the said petition was allowed without giving notice to defendants 3 and 4 in the suit on the basis of the representation of the counsel for the plaintiff that the suit was settled out of Court. After such advancement, the suit was permitted to be withdrawn by the trial Court on the same day and aggrieved by the same, the 3rd defendant filed I.A.No.3 of 2007 contending that there was no notice to him or his counsel about advancing the date of hearing and permitting the withdrawal of the suit and had he been given notice, he would have taken steps to protect his claim for a share in the suit properties. He, therefore, desired that the order dated 01-05-2007 permitting the plaintiff to withdraw the suit may be set aside. His request was opposed by the plaintiff contending that he being the master of the suit, was entitled to withdraw the suit, while the other defendants to the suit also supported the right of the plaintiff to withdraw the suit under Order 23 Rule 1 of Code of Civil Procedure. They also contended that the 3rd defendant could not have transposed himself as the plaintiff within the scope of Order XXIII Rule 1-A or Order I Rule 10 of the Code of Civil Procedure. The Vacation Civil Judge passed the impugned order noting that the suit for partition was contested by the 2nd defendant in the suit on the ground of an earlier partition and it was only subsequently that the 3rd defendant came up with an additional written statement with pleas totally inconsistent with the original written statement. Such change of version after about four years after adopting the written statement filed by the 2nd defendant was considered in the impugned order to be impermissible opining that the 3rd defendant cannot be permitted to blow hot and cold. The decisions cited on behalf of the 3rd defendant were distinguished and it was opined that it is open for the 3rd defendant to file a suit if he was really subjected to fraud by his elder brother and the mere absence of notice about the petition for advancing or the petition for withdrawal of the suit will not make the order dated 01- 05-2007 irregular. The dismissal of the petition on these grounds is challenged in this revision claiming that in a partition suit, all the defendants have to be compulsorily served with notice of a petition for withdrawing the suit as they have a chance to transpose themselves as plaintiffs. The appreciation of the pleas taken by the 3rd defendant in the additional written statement is not the subject of the petition in question and the order depriving the 3rd defendant of his valuable share in the suit properties needs to be reversed. Sri S. Malla Rao, learned counsel for the revision petitioner and Sri P. Shiv Kumar, learned counsel for respondents 2 to 4 and Sri R.A. Atchuthanand, learned counsel for respondents 5 to 7 are heard. The order in I.A.No.229 of 2007 dated 01-05-2007 itself shows that no notice of the petition for advancing was served on the revision petitioner. The impugned order itself mentions that no notice of the petition for advancing or withdrawal was given to the revision petitioner. The order in the suit dated 01-05-2007 shows that after advancing the matter as per orders in I.A.No.229 of 2007, the plaintiff’s counsel had not pressed the suit and endorsed the same, due to which the suit was dismissed as not pressed without costs. Hence, while it is not disputed as a matter of fact that the 3rd defendant/revision petitioner had no notice of the advancing or withdrawal, the other questions raised by the defendants on the merits of the claims of the 3rd defendant regarding the suit property or a share in them are not relevant for consideration of the legality of the order of withdrawal on 01-05- 2007. I n Bangaru Pattabhirmayya and others v. Bangaru Gopalakrishnayya and others[1], a Division Bench of this Court had categorically held that where the Court granted permission to the plaintiff to withdraw a partition suit without giving notice to all the contesting defendants, it acted without jurisdiction. The lawful right of the defendants in such suit to save and safeguard their lawful interest concerning the properties involved was considered to be denied in permitting a plaintiff to withdraw the suit without notice to such defendants. The Division Bench referred to the earlier precedents on this aspect in coming to such a conclusion. As the power of the Court under Order 23 Rule 1 of the Code of Civil Procedure was thus clearly held by Division Bench to be exercisable only in conformity with the principles of natural justice, any similar order passed herein against the 3rd defendant in respect of permitting the plaintiff to withdraw the suit without notice to the 3rd defendant has to be held as vitiated. In Dwarika Prasad v. Nirmala and others[2], the Apex Court also held that in a suit for partition of the joint properties, even the 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 a share in the properties. The Apex Court, hence, observed that such a suit could not have been dismissed as withdrawn without notice to the other party, who was entitled to a share in the properties. Sri P. Shiv Kumar, learned counsel for respondents 2 to 4, attempted to distinguish the decisions on facts. But, notwithstanding any distinguishability of the facts, the principle remains that in a suit for partition, the contesting defendants are entitled to notice before permitting the plaintiff to withdraw. Hence, the impugned order cannot be sustained and on the petition by the 3rd defendant to set aside the order dated 01-05- 2007 passed in the suit dismissing the suit as not pressed, such order has to be set aside, which automatically results in restoration of the suit. No expression of opinion need be made herein about the manner in which any rights claimed by the 3rd defendant in the suit properties can be preserved or safeguarded in the further proceedings in the suit and it will be for the trial Court to proceed on restoration of the suit in accordance with law after giving every reasonable opportunity to all the parties concerning any similar request that may be made by the plaintiff or the 3rd defendant or the other defendants. Accordingly, the judgment and decree in O.S.No.33 of 1999 on the file of the IX Additional Chief Judge (Fast Track Court), City Civil Court, Hyderabad, dated 01-05-2007 dismissing the suit as not pressed without costs are set aside and the Civil Revision Petition is allowed accordingly without costs. _____________________ G. BHAVANI PRASAD, J Date: 20-08-2010 Ksn [1] AIR 1986 Andhra Pradesh 270 [2] 2010 (2) Andhra Law Times 33 (SC)