Shri Kishan Maan & Anr. vs Ajay Singh Maan & Anr.
2014 Latest Caselaw 3995 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 CM(M) No.957/2013 & C.M.No.14478/2013

%                                                     28th AUGUST, 2014

SHRI KISHAN MAAN & ANR.                                     ......Petitioners
                  Through:              Mr.Daleep Kumar Dhayani, Advocate.

                  VERSUS
AJAY SINGH MAAN & ANR.                                      ...... Respondents

                  Through:              Mr.L.M.Asthana with Mr.Siddhant
                                        Asthana, Advocates.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not? Yes


VALMIKI J. MEHTA, J (ORAL)

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partitioned, and in which circumstances the suit cannot be withdrawn because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

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dismissed in default, surely a suit can be allowed to be dismissed as withdrawn.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