Madras High Court
P.Subramaniam vs K.Perumal on 8 July, 2025
Author: N. Sathish Kumar
Bench: N. Sathish Kumar
CRP.No.644 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Date : 08.07.2025
CORAM:
THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR
CRP.No.644 of 2020
and CMP.No.3331 of 2020
P.Subramaniam . . . Petitioner
Versus
1.K.Perumal
2.K.Rangasamy
3.Maragatham
4.P.Mohan
5.P.Gopal
6.K.Arumugam
7.K.Deivathal
8.S.Kamalam
9.P.Parvathi
10.D.Krishnaveni
11.M.Easwari
12.K.Mahalingam . . . Respondents
PRAYER : Petition filed under Article 227 of the Constitution of India, to set
aside the fair and decretal order made in I.A.No.617 of 2019 in O.S.No.330 of
2018 on the file of the Subordinate Judge, Palladam.
For petitioner : Mr.P.Sengutavel
for Mr.K.S.Karthik Raja
For Respondents : Mr.D.Anand Raja for R7 to R11
Page 1 / 4
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CRP.No.644 of 2020
for Mr.S.Kathamalai Kumaran
R1, R2, R12 – Service awaited
R3 to R6 – Court notice returned
ORDER
The order in and by which the learned Sub Judge, Palladam had
dismissed the application filed by the revision petitioner/11th defendant under
Order XVII Rule 2 read with Order IX Rule 8 of CPC to dismiss the suit for
default for non-appearance of the plaintiffs in O.S.No.330 of 2018 is put in
challenge before this Court by filing the present revision petition.
2. The suit has been filed filed for partition. It is the case of the revision
petitioner that the plaintiff was examined on 18.09.2019, however, he did not
appear for cross examination for three hearings, i.e., 23.09.2013, 26.09.2019 &
17.10.2019, therefore, the application has been taken out by the revision
petitioner/11th defendant for dismissal of the suit in O.S.No.330 of 2018. The
Trial Court taking note of the fact that part of the suit claim is admitted in the
pleadings and the substantial evidence is also on record dismissed the
application vide order dated 11.12.2019. Challenging the said order, the
unsuccessful 11th defendant has come up with this revision.
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3. Heard the learned counsel for the petitioner and the learned counsel
for the respondents 7 to 11 and perused the materials placed on record.
4. The suit is filed for partition and all the parties have shares; even the
defendants can be transposed as plaintiffs. Such view of the matter, merely
because the plaintiff has not appeared for cross examination for three hearings,
that cannot be a ground to dismiss the entire suit, since it is a partition suit. It is
worthwhile to refer to the judgment of the Hon'ble Supreme Court that in the
case of Bhagwan Swaroop v. Mool Chand reported in AIR 1983 SC 355,
wherein, it has been held that in a suit for partition, the position of the plaintiff
and the defendant could be interchangeable. Each party adopts the same
position as the other parties. Further, so long as the suit was pending, and
defendant could ask the Court to transpose him as a plaintiff and a plaintiff
could ask for being transposed as a Defendant.
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N. SATHISH KUMAR, J.
5. Accordingly, I do not find any merits and this revision stands
dismissed. No costs. Consequently, connected miscellaneous petition stands
closed. The Trial Court is directed to dispose of the suit within a period of
three months from the date of receipt of a copy of this Order.
08.07.2025
Index : Yes / No
Internet: Yes
Speaking/non speaking order
dhk
To,
1. The Sub Judge
Subordinate Judge, Palladam
2. The Section Officer
VR Section, Madras High Court
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