Shri Kishan Maan & Anr. v. Ajay Singh Maan & Anr.

1. Challenge by means of this petition under Article 227 of the Constitution of India is to the impugned order of the trial court dated 16.7.2013 by which the trial court has allowed the respondent no.1/plaintiff to withdraw the suit for partition and injunction.

2. I put it to the counsel for the petitioners/defendant nos. 1 & 2/parents as to whether they admit that suit property is a joint property required to be partitioned, and in which circumstances the suit cannot be withdrawn because the petitioners/defendant nos. 1 & 2 can be transposed as plaintiffs on the plaintiff seeking withdrawal of the suit, but, the counsel for the petitioners/defendant nos. 1 & 2 states that the suit property is not jointly 2014:DHC:4231 CM(M) No.957/2013 owned property or an HUF property. Once that is so, this suit is not a typical partition suit where defendants can be transposed as plaintiffs under Order XXIII Rule 1(A) of the Code of Civil Procedure, 1908 (CPC).

3. The second reason because of which a plaintiff cannot be allowed to withdraw his suit is if a plaintiff has taken the benefit of an interim order, then, he cannot be allowed to withdraw the suit without restituting the benefits of an interim order which is vacated at the time of withdrawal of the suit. But, that too is not the position in the present suit.

4. Since the plaintiffs are dominus litis, courts cannot force the plaintiffs to continue with the suit inasmuch as, suppose the plaintiffs do not appear in a suit, surely such a suit has to be dismissed in default, and if a suit can be dismissed in default, surely a suit can be allowed to be dismissed as withdrawn.

5. In view of the above, there is no merit in the petition, and the same is therefore dismissed, leaving the parties to bear their own costs.

AUGUST 28, 2014 VALMIKI J. MEHTA, J KA