A co-sharer may be transposed as plaintiff to continue a partition suit after withdrawal.

The suit was instituted in 2010 for declaration of shares, partition of the suit properties and ancillary reliefs.

Rita Dass, the sole Defendant, contested the suit by filing a Written Statement.

The matter remained pending and was fixed for framing of issues.

On 22 July 2026, the Plaintiffs expressed their intention to withdraw from the litigation.

The Defendant opposed withdrawal on the ground that the dispute concerned the proprietary rights of co-sharers and had remained pending for approximately sixteen years.

The Court granted her liberty to seek transposition as Plaintiff and to prosecute the suit.

Pursuant to that liberty, the Defendant filed GA/3/2026 seeking amendment of the plaint, consequential departmental directions, leave to re-verify and serve the amended plaint, and transposition from the array of Defendants to that of Plaintiffs.

The proposed amendments were consequential upon the alteration of the parties and did not introduce any new property, independent cause of action or distinct controversy.

The suit had not proceeded to trial, and framing of issues had not culminated in the commencement of evidence.

Whether the Defendant, being a co-sharer with a direct and substantial interest in the subject matter of the partition suit, could be transposed as Plaintiff when the existing Plaintiffs sought to withdraw from the litigation?

Whether the consequential amendments to the plaint and cause title were permissible under Order VI Rule 17 of the Code of Civil Procedure, 1908?

Whether such transposition and amendment would preserve the existing lis without enlarging the subject matter or causing prejudice to the other parties?

The Court applied Order I Rule 10(2), CPC, which empowers the Court at any stage of the proceeding to add, remove or rearrange parties where necessary for the effective and complete adjudication of the questions involved.

It also relied on Section 151, CPC, preserving the Court’s inherent jurisdiction to secure the ends of justice and prevent abuse of process.

Order XXIII Rule 1A, CPC, although specifically addressing withdrawal or abandonment of a suit, reflects the principle that a defendant having a substantial interest in the subject matter should not be deprived of adjudication merely because the plaintiff seeks to withdraw.

The Court further applied Order VI Rule 17, CPC, permitting amendment of pleadings where necessary for determining the real questions in controversy, particularly when the amendment is consequential and causes no irremediable prejudice.

In a partition suit, the Court must determine the rights of all co-sharers in the common property and mould relief according to their adjudicated shares; a co-sharer’s proprietary interest is not extinguished by the withdrawal of the co-sharer who instituted the proceeding.

The Court found that Rita Dass was herself a co-sharer in the property constituting the subject matter of the suit and that her interest was direct, substantial and inseparable from the controversy.

Her transposition would not introduce a foreign claim or enlarge the lis; it would merely allow the existing partition dispute to proceed notwithstanding the Plaintiffs’ proposed withdrawal.

This approach was consistent with Order I Rule 10(2), Section 151 and the protective principle underlying Order XXIII Rule 1A, since it avoided leaving the Defendant to initiate fresh proceedings concerning the same proprietary rights.

The proposed amendments were consequential amendments to the pleadings and cause title, the suit had not entered the evidentiary stage, and the amendments would facilitate determination of the existing controversy rather than alter its nature.

Any prejudice to the other parties could be addressed by service of the amended plaint and granting them liberty to file consequential pleadings and take permissible procedural steps.

Rita Dass was transposed from Defendant to Plaintiff, while the existing Plaintiffs were arrayed as Defendants, with consequential amendments to the cause title and records.

She was granted leave to re-verify the amended plaint and serve it upon the concerned Advocate-on-Record.

The Court expressly directed that the transposition would not enlarge the suit, introduce a fresh cause of action or alter the character of the partition proceeding, and preserved the rights and defences of all parties.

The Department was directed to complete the consequential amendments within four weeks, and the suit was directed to appear on 28 September 2026 after compliance with the directions.