1994 PLP 1967 (CLC)

ORDER 17 RULE

3. Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith:' RES UME OF THE CASE‑LAW. In case of Mahanth Singh v. U Ba Yi AIR 1939 PC 110 it has been held that Order 1, Rule 10, C.P.C. although authorises the Court to order the name of a party improperly joined to be struck off but in case the order is not subjected to any terms then the effect of withdrawal of the suit would be that the plaintiff shall be debarred from filing of fresh suit on the same subject‑matter. However the order of withdrawal of the suit without permission will not release or discharge the debt payable to the plaintiff creditor. In case of The Evacuee Trust Property Board, Lahore v. Mst. Farkhanda Akhtar and others (1989 SCMR 1589) where the petitioner in a pending settlement proceedings before the Settlement Commissioner, had dropped certain respondents and also before the High Court in appeal which was accepted and the case was remanded, and therefore he wanted to implead the dropped parties as respondents in the post remand proceedings, their Lordships have held the petitioner having himself invited Court to adopt course of action whereby respondents' names were dropped, could not make a grievance against that course of action. Fact of this case clearly shows that it was the petitioner who himself had dropped certain parties as respondents in the proceedings and as remand order had become final and had not been challenged and naturally had to be decided amongst the original parties during the post‑remand proceedings, the petitioner was not again allowed to add the deleted parties as respondents. In case of Idrees Anwar v. National Industrial Cooperative Finance Corporation Ltd. 1993 CLC 1207 where, in a pending suit an official defendant against whom no relief had been claimed in the suit was struck off as a party from suit, on the ground that he was neither a necessary nor a proper party and the said order having not been challenged became final, fresh application for impleadment of that official defendant was dismissed, this Court held that as the defendant was neither a proper nor a necessary party nor any relief has been claimed against the said official defendant, therefore, he has rightly not allowed to be impleaded as a party to the suit, hence, the Constitutional petition was dismissed. In this case also it is apparent that the main emphasis for non‑interference with the order passed by the learned Civil Judge is that the party to be impleaded in the suit has been held to be neither a proper nor a necessary party. In case of Nunu Singh v. Muni Nath Singh and others (AIR 1954 Patna 314) which is nearest to the facts of the case in hand, it has been held that in case of the several plaintiffs desires to withdraw from the suit without the liberty to bring a fresh suit in respect of the subject‑matter of such suit or such part of the claim, such a case is outside the provision of 0.23, R.1 and, hence, withdrawing plaintiff may be added as a defendant. Paragraphs 10 and 11 of the judgment at page 316 of the report are reproduced as under:‑‑ "

10. As I read these sub‑rules of Rule 1, in my judgment, sub‑rule (4) does not govern sub‑rule (1) which was for the first time brought into the statute book in 1908; the sub‑rules (2) to (4) were already there even in the Code of 1882; and that in a case where one of the several plaintiffs desire to withdraw from the suit without the liberty to bring a fresh suit in respect of the subject‑matter of such suit or such part of the claim such a case is outside the provision of Order 23, rule

1. I am amply supported in the view which I have taken of these sub‑rules of rule 1 by a long line of cases of different Courts and the latest of these cases is the case of `Baidya Nath v. Shyama Sundar', AIR 1943 Cal. 427 (a). This Calcutta case has reviewed all the previous decisions of the different High Courts, and it is not necessary for me to reconsider those cases. Both parties relied upon this case.

11. Mr. P.R. Das, appearing on behalf of the opposite‑party, supported the order moved against, but, upon the authority of this case, he submitted that in suitable cases, as was held in the above‑noted case, one of the several plaintiffs, who wants to withdraw from the suit, may be added as a party defendant to the action as was done in several cases in this country which were referred to in the Calcutta case. Mr. Lal Narayan Sinha, appearing on behalf of the petitioner, welcomed the suggestion of Mr. Das and he agreed that the petitioner should be added as a defendant to the suit. In this view of the matter, it is not necessary to seriously consider the argument of Mr. Das that, as there was no question of jurisdiction, this Court should not interfere with the order passed. As I Have already indicated, the learned Munsif has not considered the implications of the sub‑rules of rule 1 of Order 23, and, if it was necessary to hold, I should have found that the Court below, in exercise of its jurisdiction, has acted with grave and material irregularity in rejecting the application of the petitioner on the grounds mentioned by it. In the circumstances, aforesaid, I would allow the application and direct that the petitioner Nunu Singh be removed from the category of plaintiff and be added as a defendant to the suit pending before the learned Munsif at Barh. In case of Nandi and others v. Shyama Sundar Nandi and others (AIR 1943 Calcutta 427) it has been held that in case where one of the co-plaintiffs desires to withdraw from the suit without consent of the other co‑plaintiff the provision of Order 23, rule 1 (4) are not applicable and in such a case he should be ordered to be joined as a defendant and an order should also be passed indemnifying the remaining plaintiffs. At pages 428, 429 and 430 of the report it has been observed as under:‑‑ "It would clear from the provisions of sub‑rules (1) to (3) mentioned above that it is only when the plaintiff wants liberty to bring a fresh suit in respect of the same subject‑matter that he is required to ask the permission of the Court as is provided for in sub‑rule (2). If he does not want the liberty to institute a fresh suit nor seeks to avoid the consequences which sub‑rule (3) imposes upon him he can withdraw the suit suo motu as laid down in sub‑rule (1) without any permission from the Court. The question now is what would be the position, if there are several plaintiffs in a suit and one of them wants to withdraw from it. Under sub‑rule (4) the Court has no authority to permit one of several plaintiffs to withdraw without the consent of the others. In my opinion, Mr. Bose is right in his contention that the operation of sub‑rule (4) is confined to cases where permission of the court is necessary in order to enable the plaintiff to withdraw from a suit on in other words, it is applicable only when the plaintiff wants to have the liberty of instituting afresh suit in respect of the sane subject‑matter. In such a case express leave of the Court is necessary and even if there are circumstances present which would justify the Court in granting leave under sub‑rule (2), sub‑rule (4) imposes a restraint upon its authority and prevents it from granting permission to one of several plaintiffs to withdraw from a suit if the other plaintiffs do not consent to this course. But if the withdrawing plaintiff does not want to reserve any right to renew the suit on his own account in future and is prepared to take the consequences indicated in sub‑rule (3), it cannot be said that his right of withdrawal is dependent on the consent of the other plaintiffs. This was exactly the view taken in 9 CLR

332. In this case, a suit was instituted by two plaintiffs and in the course of suit one of the plaintiffs whose name was Ram Kanai sold his interest to one Chandra Mohan. After' transferring his share, Ram Kanai intimated his withdrawal from the suit as plaintiff. The Court accepted the withdrawal but as Chandra Mohan did not join as plaintiff the suit had to be ultimately dismissed on the ground of defect of parties. On appeal, the subordinates Judge held that under clause (3) to S. 373, C.P.C., (which corresponds to sub‑rule (4) of Order 23, rule 1 of the present Code) Ram Kanai could not withdraw from the suit without the consent of the remaining plaintiffs. The subordinate Judge, therefore, treated Ram Kanai as still as record and remanded the case for retrial. Against this decision, a second appeal was taken to this Court and Morris and Tottenham, JJ. who heard the appeal reversed the decision of the lower Court. "It seems clear to us as runs the judgment of the learned judges that the subordinate Judge has misunderstood the meaning of this clause which is that the Court can only authorise one of several plaintiffs to withdraw from a suit with permission to renew that suit on his own account by consent of the others. That any plaintiff can withdraw from a suit is manifest from the terms of clause (2) of that section. But the result of so withdrawing without the permission of the Court is that he is precluded from bringing a fresh suit for same matter. It was held that Ram Kanai having withdrawn from the suit unconditionally there was no reasons why the Court should not accept his withdrawal upon such terms as to costs or otherwise as it thought fit. But as the remaining plaintiff was not competent to maintain the suit in the absence of Chandra Mohan who refused to join as plaintiff, it was directed that Chandra Mohan should be made a co‑defendant in the suit. I may say that I am in entire agreement with the interpretation put by the learned Judge upon this provision of the Code of Civil Procedure. It is true that sub‑rule (1) was not in the old Code and was inserted for the first time in the Code of 1908. But that sub‑rule does not create any new right. The right of the plaintiff to withdraw from a suit without the permission of the Court when he did not want any liberty to institute a fresh suit was implied in clause (2) of S. 373 of the old Code which corresponds to sub‑rule (3) of the present Code: Vide 32 Bom. 345 sub‑rule (1) was added only with a view to make complete the enunciation of law relating to withdrawal of suits. The view taken in 9 CLR 332 was accepted by the Bombay High Court in 29 Bom. LR 299 and it was held that under Order 23, rule 1, C.P.C. one of the appellants can withdraw from the appeal without the consent of his co‑appellants. Fawcett, J. who was party to this decision reserved his opinion on the point as to whether apart from sub‑rule (4) the Court has any powers to control a plaintiff who desires to withdraw from a suit if that would operate to the prejudice of his co‑plaintiffs. But he agreed with Shaha, J. that sub‑rule (4) had no application to these cases where the plaintiff did not want liberty to bring a fresh suit in respect of the same matter. In a very recent decision of the Madras High Court the same view has been taken by Krishanaswami Iyyanger, J. vide AIR 1942 Mad.

373. Dr. San Gupta who appears for the other plaintiffs has argued before us that sub‑rules (1) to (3) of Rule 1 of Order 23, C.P.C. relates to cases where withdrawal with or without leave is sought for by the sole plaintiff or by all the plaintiffs together and that sub‑rule (4) was inserted only to make it clear that one of several plaintiffs cannot withdraw with or without the permission of the Court unless the consent of his co‑appellant was obtained. I am inclined to agree with him that the expression `withdraw his suit' as used in sub‑rule (1) suggest that the word `plaintiff : in that sub‑rule is intended to mean all the plaintiffs collectively if there were more plaintiffs than one. But if we accept this interpretation, that by itself would be of no assistance to Dr. Sen Gupta's clients. The result will be that the withdrawal by one of several plaintiffs would be outside sub‑rule (1) and sub‑rule (4) would not control sub‑rule (1) in any way. I do not think however that sub‑rules (2) and (3) are limited to cases where the application for withdrawal is made by the sole plaintiff or by all the plaintiffs together. The words withdraw from the suit as used in these sub rules are wide enough to include a case where one of several plaintiffs withdraws and this was expressly decided by our Court in 9 CLR 332 referred to above. In that case as has been said already, it was held that quite apart from sub‑rule (1) which was not then in the statute book one of two plaintiffs could withdraw without the leave of the Court under the provision of clause (2) of section 373 which corresponds to sub‑rule (3) in the present Code. It may be said that after the addition of sub rule (1) in the present Code, the right of a plaintiff withdraw from a suit without leave of the Court should be deemed to be regulated exclusively by that sub‑rule. If that is so then according to 'the interpretation put upon sub‑rule (1) one of several plaintiffs would have no right of unconditional withdrawal as laid down in that sub rule. The right of a co‑plaintiff to withdraw would then have to be regarded as a right outside the provision of sub‑rule (1) and it may not be an absolute right totally uncontrolled by the Court. In my opinion whatever view we might accept when there is no question of seeking permission from the High Court to institute a fresh suit on the same subject‑matter sub‑rule (4) of R.1 of Order 23, C.P.C. which speaks of authorising the Court to permit one of several plaintiffs to withdraw, cannot have any possible application. In case of Nilappagouda Goudappagouda and others v. Basangouda Sangangowda and others (AIR 1927 Bombay 244), it has been held that a eo appellant can withdraw from an appeal under sub‑rule (4) of rule 1, Order 23 without the consent of the other appellant and in such a case the provision of Order 23, rule 1 (4) will not be attracted. In case of Central Government of Pakistan and others v. Suleman Khan and others (PLD 1992 SC 590) it has been held that scope of provisions of Order 1, Rule 10, C.P.C. is very wide and that the Court has every power to transpose either of the parties to the lis either as a plaintiff or as a defendant suo mote or even on the basis of an oral request. At page 594 of the report it has been held as under:‑ "In our view, the High Court has taken too strict view of the power granted to the Court by the provisions of the Code of Civil Procedure. Order 1, Rule 10, C.P.C. is very wide in its scope. The power to transpose is deprived amongst others, from the said provision which has always been interpreted liberally so as to achieve the complete adjudication of all the questions which are involved in the lis, one of the purposes being to avoid multiplicity of the proceedings. In other words the power to transpose is to be exercised liberally and no technical hurdle is considered so strong as to override the consideration of "adjudication" or right to justice. It is in that very context that when a defendant/respondent is transposed as plaintiff/appellant no question of limitation as such is involved. Order 1, Rule 9, C.P.C. gives also very strong support for the foregoing approach regarding interpretation and application of Order 1_ Rule

10. C.P.C.. This provision (rule 9) is in a mandatory negative form namely, that no suit shall be defeated by reasons of the misjoinder or non joinder of parties and the Court may in every suit, deal with the matter in controversy so far as regards the rights and interests of the parties are concerned. It is not at all in dispute nor the"" High Court had any such constraint that what is applicable to the plaintiff and defendant at the trial stage can also apply in appeal, to the appellant and the respondent in so far as these two provisions in Order 1, Rules 9 and 10, C.P.C. are concerned. Not only this it is now, well settled that under Order 41, Rule 33, C.P.C. that the High Court, and under Order 33, Rule 5 of the Supreme Court Rules this Court,, can exercise the appellant powers in favour of all or any of thei respondents or parties although such respondents or parties may not, have filed an appeal or objection. See Province of West Pakistan through Secretary, Revenue Department, Lahore v. Associated Hotels of India Ltd. 1973 SCMR

367. It is clear that what can be done under Order 1, Rule 10, C.P.C. for purpose of transposition on an oral request or specific application, can also be done by the Court concerned sue motu without any application. The aforediscussedP;‑,'1,F7, considerations, with respect, were not examined by the High Court~;, when refusing the transposition in this case."

7. In case of Bhubaneswar Patel v. Janak Patel and others (AIR 1976 Orissa 216), dealing with the question of allowing of amendment at the appeal, stage, it has been held where proposed amendment of plaint will change the foundation of suit and introduce distinct cause of action, plea of avoiding multiplicity of proceedings will not prevail and in such a case amendment in;' the plaint cannot be allowed. It has further been held in this judgment that those facts which were within the knowledge of the plaintiff and hence were available to him when the suit was filed but were not mentioned in the original, plaint, subsequent prayer for grant of amendment of the plaint so as to add those facts, in the plaint, amount to allowing introduction of new case . altogether and, hence, in such a case amendment cannot be allowed. Paragraph 6 of the judgment is reproduced as under:‑ "In the present case the plea that the plaintiffs had acquired title to the. suit lands by inheritance was available to them when they filed the suit, but such a case was not made out in the plaint. Allowing the amendment at this stage would necessitate remand of the suit to the trial Court, addition of new parties, filing of fresh written statement framing of fresh issues and recording of fresh evidence." In case of Bhagvatula Gopalarkrishnamurthi and others v. Dhulipalla, Sreedhara Rao and another (AIR (37) 1950 Madras 32) it has been held that if during the pendency of a lis some events giving rise to rights occur the amendment can be allowed to mention in the plaint the aforementioned subsequent events but those facto which were available to the plaintiff at the time of filing of the lis but were not stated in original plaint, cannot be allowed to be added in the plaint by way of amendment. In case of The Municipal Corporation of Greater Bombay v. Lala Pancham and others (AIR 1965 SC 1008) it has been held that amendment of the plaint cannot be allowed in order to introduce a new case and, hence, plea of fraud which has not a slightest basis in the plaint as it originally stood cannot be allowed to be raised. In case of Raja Sher Ahmad v. Muhammad Abdullah and others (1991 SCMR 277) it has been held that where application for amendment of the plaint if granted, title suit shall be changed into a suit for specific performance of the agreement for sale, it cannot be allowed because such a course will cause miscarriage of justice, hence, order of dismissal of such application was upheld by their Lordships of the Supreme Court. In case of Mst. Ghulam Bibi and others v. Sarsa Khan and others (PLD 1985 SC 345) after review of almost whole of the relevant case‑law on the subject, their Lordships of the Supreme court held that power to allow amendment should be liberally exercised as all procedures are meant to advance justice and to preserve rights of litigants and they ‑were not meant to entrap them into blind corner so as to frustrate purpose of law and justice and further that any system which by giving effect to the form and to the substance defeats substantive rights, is defective to that extent. The ideal must always be a system that gives to every person what is his. It has further been held that rules of procedure are nothing but provisions intended to secure the proper administration of justice, and it is, therefore, essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject‑matter of the suit. In case of Sh. Abdul Rahim v. Noor Muhammad and 8 others (1993 CLC 1059) it has been held the power of amendment of pleadings is available at any stage of the lis and the bar of limitation and delay will not be a ground to refuse amendment if it was necessary for the just decision of the case. In case of Semco Salvage Pte Limited v. m.v. "Kaptan Yusuf Kalkavan" and another (1993 SCMR .593) it has been held that while deciding application under Order VI, rule 17 technicalities are to be avoided. In case the proposed amendment was directly. connected with the cause of action and same would not alter the nature of suit either in form or in substance and is necessary for resolving entire dispute between the parties and saving them from multiplicity of proceedings the order allowing amendment is lawful and, hence, was restored in appeal by the Lordship of the Supreme Court by setting aside the order of dismissal of application passed by a D.B. of this Court. In case of Mir Mazar v. Azim (PLD 1993 SC 332) it has been held that in case of amendment of the pleadings the law‑makers were conscious that the party opposing the amendment might be deprived of some right, convenience or advantage or may otherwise be put to some embarrassment by permitting the amendment which as it has often been held might even override the consideration of limitation, provided the cause of action is not changed so as to make it a totally new suit. It was this consciousness regarding some amount of loss to the other party that the law‑makers visualised a compensation, namely that the amendment keeping in view the circumstances of the case and the stage of litigation would be on such terms as may be just. It has further been held that rules of procedures are meant to advance justice and to preserve rights of litigants and they are not meant to entrap them into blind corner so as to frustrate the purpose of law and justice, therefore, their Lordships have held that the proposed amendment should have been allowed as the nature of the suit was not changed.

8. In case of Abdul Haq and another v. Mst. Fatima (AIR 1935 Lahore 544) where a person had been impleaded as a defendant in the previous suit and his interest was hostile to other co‑defendants, it has been held that the decision of the previous suit is res judicata. A perusal of the judgment clearly shows that in this case there was a contested decision of the matter in issue and it was a case where the plaintiff could not have obtained a relief against the amendment unless there was a decision by necessary implication between the conflicting interest of the defendants Nos.l, 2 and defendant No.3 in the old suit. The previous decision therefore in view of all the circumstances of the two litigations has been held to operate as res judicata even against the co defendant. In case of Mating Sein Done v. Ma Pan Nyun and others (AIR 1932 PC 161) it has been held that if a plaintiff cannot get his rights without trying and deciding an issue between co‑defendants the Court will try and decide that issue and the co‑defendant will be bound by the decision. But if the relief given to the plaintiff does not require or involve a decision of any issue between the co‑defendants, they will not be bound as between each other by any proceedings, which may be necessary only to decree the claim of the plaintiff. In this case the decision that none of the sister was entitled to inherit to their Chinese mother in a previous suit brought by A against her sister B and their two brothers has the effect of barring a subsequent suit, under the doctrine of res judicata, brought by B against A and the two, brothers claiming a share in the property to her mother. This is also a contested suit and the matter in issue had been decided even between co‑defendants. In case of Mst. Munni Bibi and another"v Tirloki Nath and. Others (AIR 1931 PC 114) it has been held that doctrine of res judicata applies between the co‑defendants as well. However, to apply the principle of res judicata between the co‑defendants three conditions are prerequisite (1) there must be conflict of interest between the defendants concerned; (2) it must be necessary to decide this conflict in order to give the plaintiff the relief he claims and (3) the question between the defendants must have been finally decided. In case of Fazal Dad and others v. Ahmed Ali and others (PLD 1960 (W.P.) Lahore 106) while explaining the applicability of principle of res judicata between co‑defendant, D.B. of this Court at page 110 has held as under: 'There is yet another aspect of the case which clinches the whole issue against the appellant. According to the dictum of their Lordships of the Judicial Committee in Chandu Lai Agarwalla and another v. Khalilur Rahman and others (2) the conditions for the application of doctrine of res judicata as between the parties who have been co defendants in a previous suit are there must be a (conflict of interest between the co‑defendant (2) the necessity to decide that conflict in order to give the plaintiff the appropriate relief, and (3) a decision of that question between the co‑defendants. The doctrine may apply even though the party against whom it is sought to enforce it, did not in the previous suit think fit to enter an appearance and contest the question. But to this the qualification must be added that, if such a party is to be bound by a previous judgment it must be proved clearly that he had or must be deemed to have had notice that the relevant question in issue and would have to be decided. In the 1901 suit Imam Din and others had claimed possession of 1/4 share in the estate of Qada and did not claim anything for or on behalf of Daulu and Maulu. To the contrary it was asserted that they had declined to join the plaintiff in the suit on account of collusion with the defendants. Daulu and Maulu who were joined as pro forma, defendants subsequently under the directions of the Court, did not ask for any relief in the suit against their co defendants. Indeed they could not have asked for any unless they were transposed as plaintiffs or instituted a separate suit. They filed their written statement, acknowledging the plaintiff's claim against their‑co defendant and made their exit from further proceedings in the suit. In the plaint there was not averment that the contesting defendant had denied that Noora was son of Khuda Baksh and the written statement in which the contesting defendant had raised this plea was not served on Maulu and Daulu, and they were not required to reply to it. It is, therefore, not at all proved in the case that Daulu and Maulu had noticed of the contention raised by their co‑defendants that Noora was not the son of Khuda Baksh and, in the absence of this knowledge they themselves were not estopped from challenging the findings given in that case against Imam Din and others. In fact there was no conflict of interest between Maulu and Daulu on one hand and the contesting defendant on the other because the former did not claim against the latter any share in the inheritance of Qada. The decision in the 1901 suit that Noora was not the son of Khuda Baksh was, therefore, not res judicata in the present suit." In case of Chandu Lai Agarwalla and another v. Khalilur Rahman and others (AIR (37) 1950 PC 17) while dealing with the question of applicability of principle of res judicata amongst co‑defendants that pages 17 to 19 it has been held as under: "The single question argued before the Board was as to the validity of the plea raised by the appellants that the claim of the plaintiffs in the present suit to be lawful heirs of one Safiquddin, who died intestate on 11th March 1924 was res judicata in a previous suit, namely Suit No.l of 1922, which had been heard and determined by the Subordinate Judge of Jalpai on 23rd August 1924. If that plea was valid there was no question but that the appeal must succeed: if it was not, then, though the appellants had raised a number of alternative plea, it was plain to their Lordships that they could not be maintained and the appeal must fail. The appellants contended that the judgment in Suit No.l of 1992 (which will be referred to as "the previous suit") operated under the principle of res judicata to preclude the plaintiffs from asserting that they wee the lawful wife and lawful children of Safiquddin. Upon this question the judgments of the Subordinate Judge and the High Court were alike adverse to the appellants and their Lordships see no reason for coming to a different conclusion. . In Muni Bibi v. Tirloki, 58 IA 158; (AIR (18) 1931 PC 114) the conditions for the application of the doctrine of res judicata as between parties who have been co‑defendants in a previous suit are thus laid down; there must be (1) a conflict of interest between the co defendants, (2) the necessity to decide that conflict in order to give the plaintiff to appropriate relief, and (3) a decision of that question between the co‑defendants. It may be added that the doctrine may apply even though the party, against whom it is sought to enforce it, did not in the previous suit think fit to enter an appearance and contest the question. But to this the qualification must be added that, if such a party is to be bound by a previous judgment, it must be proved clearly that he had or must be deemed to have had notice that the relevant question was in issue and would have to be decided. It is at this point that the appellant's case breaks down. Their Lordships do not follow the High Court in saying that it appears from the evidence on the record that the first plaintiff in the present suit, Khatemmanessa, who claims to be a lawful widow of Safiquddin, was in the previous suit designedly kept from the knowledge that in that suit there was a conflict of interest between herself and her co‑defendant Tanjina Khatun, admittedly a lawful widow of the deceased. It was in fact admitted upon an application to the High Court for leave to appeal His Majesty‑in‑Council, that this statement could not be supported. On the other hand, it appears to their Lordships that the appellants have by no means discharged the burden, which lies upon them, of showing that Khatemmanessa had or must be deemed to have notice of that conflict. The only documents in the previous suit that have been made available in these proceedings are, (1) the written statement of Tanjina Khatun and her lawful children, (2) the judgment of learned Subordinate Judge, and (3) his decree. From these documents it appears though much is obscure, that the suit was originally brought against Safiquddin (or it may be against Safiquddn and others) for recovery of rent for a considerable period in respect of a substantial area of land, and that no Safiquddin's death were substituted for him as defendants Tanija Khatun and her children and Khatemmanessa and her children. It appears further that Tanjina pleaded for herself and her children that they were "the only heirs in enjoyment of the properties left by Saqiuddin", that Khatemmanessa and her children were not his heirs and had no right or interest or possession of the rent lands in suit that Khatemnmanessa was not the wife of the deceased and that she and her children had been unjustly joined in the suit. Khatemmanessa did not enter an appearance in the suit and it is not to be assumed that she was aware of the contents for her co‑defendant's written statement. Within two days of the filing of the written statement the learned Judge gave judgment among the issues framed by him was No.4. `Is the suit bad for misjoinder of parties?' and upon this he said that both the parties (i.e. presumably the plaintiff and Tanjina Khatun and her children) agreed that Khatemmanessa and her children were not Safiquddin's heirs that according to them Khatemmanessa was not his married wife but a concubine and that her children were not his legal heirs and accordingly the suit must be dismissed against them. The claim was accordingly decreed with costs against the defendants other than Khatemmanessa and her children. So far it is abundantly clear that there is no justification for attributing to Khatemmanessa knowledge that in the suit for rent brought against her co‑defendants and herself the question of her status would as between herself and Tanjina Khatun have to be decided. She might indeed assume from the fact of her joinder that question was not in issue. The appellants, however, have relied upon the fact that in the title to the decree as it appears in the record she is described as `The concubine of the deceased 20 (cha) Khatemmanessa'. Whatever value there may be in this is somewhat diminished by the fact that in the same title her children are described as `the minors aforesaid being respondents by their guardian and mother Khatemmanessa widow of late Safiquddin.' But in any case their Lordships think that from this single fact it would be proper to draw the inference that Khatemmanessa either knew or should have known that any conflict of interest between Tanjina Khatun and herself would fall to be determined. It is not clear to them why, if the plaintiff sought to charge Khatemmanessa as one of the lawful heirs, he should have described her by a title which removes her from that category. They have not had the advantage of seeing the plaint, original or amended, or the summons that was served on Khatemmanessa. Much has been left obscure but for that she cannot be held liable. The appellants had failed to show that the conditions are satisfied upon which alone the principle of res judicata can be applied." In case of Habibur Rahman v. Abdul Rahman and 3 others (1987 C1.C 195) it has been held that doctrine of res judicata is not applicable to the suit for partition as it was a continuing cause of action and any shareholder whether a minor or even an adult, whose rights have not been adjudicated upon earlier can file a suit for partition. At pages 205 and 206 of the report it had been held as under:‑‑ "Issue No.4: Learned counsel for the defendant No. 1 attempted to argue that the dismissal of Suit No. 109 of 1965 which, as stated above was filed by the mother of the plaintiff, is a res judicata to this suit. In the first instance it must be noted that the suit was not dismissed on merits. It was dismissed on account of non‑prosecution when the plaintiff was still a minor. The plaintiff was born on 8‑4‑1952 and attained majority in or about April, 1970. The suit was filed in 1971. The learned counsel for the plaintiff has placed his reliance on the following cases to show that a suit for partition is never hit by the doctrine of res, Judicata or even by limitation as it is a continuing cause of action and any shareholder whether a minor or even an adult, whose right has not been adjudicated earlier, can file a suit for partition: (1) Bisheshar Das and another v. Ram Prasad and another ILR 1928 All.

627. The above case was decided by a D.B. of Allahabad High Court in which it was held that if a suit for partition was dismissed in default, a fresh suit was competent so long as the property was not partitioned and continued to be occupied by the defendant. The learned Judges made the following observations in that case:‑‑ "In this respect suits for declaration of right to partition differ from most other suits. So long as the property is jointly held so long does a right to partition continue. When a person having a right to partition, and desiring to partition, has his right challenged, it appears to us he can maintain a suit for a declaration provided his prior decree is not still enforceable. After narrating this passage from an earlier judgment the earned Judges proceeded to hold "as it appears to us, the right to enforce partition is a legal incident of a joint tenancy, and so long as such tenancy subsists so long may any of the joint tenants apply to the Court for partition of the joint property. For these reasons the Courts below have erred in dismissing the suit". (2) Manohar Lal Behari Lai v. Onkar Dass alias Omkar Dass and others AIR 1959 Pb. 252: This is another case from Indian Jurisdiction in which the same view has been taken. This is also a D.B. case in which the maintainability of a second suit has been examined in the light of section 11 and Order IX, Rule 8, C.P.C. The plaintiff had filed a suit for partition of a joint property against his brother. Before proceeding on merits a settlement was arrived at between the parties under which the plaintiff agreed to take a special oath and be bound by the agreement. Later he changed his mind and refused to take a special oath. When the case came up for hearing, it was notified in Court that the plaintiff had not taken the special oath. The plaintiff also did not turn upon the date of hearing and the learned Judge dismissed the claim of the plaintiff on account of his absence, under Order IX, Rule 8, C.P.C. After sometime he filed a fresh suit, but the same was dismissed by the Court on the ground that the second suit was hit by res judicata. In appeal High Court held that `there can be no doubt that an order under Order IX, Rule 8 cannot amount to res judicata fur the simple reason that the suit cannot be deemed to have been heard and finally decided by means of this order. The only effect of an order passed under Order IX, Rule 8 is that a fresh suit based on the same cause of action is barred by the provisions or Order IX, Rule

9. However, a suit for partition dismissed for default under Order IX, Rule 8 does not bar a subsequent suit for partition. The reasons is that the right to enforce a partition is a continuous right which is a legal incident of a joint tenancy and which enures so long as the joint tenancy continues." (3) Muhammad Bazrur Rahman v. Syed Ali Prammanik and others (PLD 1967 Dacca 809): In this case the same view has been adopted. In this case one of the plaintiffs died during the pendency of the suit and her widow was not brought on the record within the period of limitation. After the period of limitation the remaining plaintiffs filed an application for expunging the name of plaintiff No. 1 from the plaint and impleading the widow as defendant No.

4. The application was allowed by the trial Court and against this order a revision was filed by the defendants on the ground that the widow's name was substituted after expiry of the period of limitation. This contention was negatived and the order of the trial Court was sustained. The following observations are pertinent:‑‑ "A suit for partition has some distinct features. In such a suit every co sharer, whether he is included in the category of plaintiff‑defendants, stands in the position of a. plaintiff. Moreover cause of action for such a suit is always recurring Rule 9 of Order XXII of the Code of Civil Procedure provides that where a suit abates no fresh suit shall be brought on the same cause of action. As there is always a recurring cause of action for a suit for partition, such a suit can be brought even after the abatement of a previous partition suit. That being so, the ends of justice demand that the parties in a suit for partition should not be driven to a fresh suit only on the ground that substitution of the heirs of one of the deceased plaintiffs or defendants was not sought for well in time. In view of the above rulings the plaintiff is entitled to file the suit for partition."

10. Following legal principles which are relevant to the controversy involved in the case in hand have been laid down in the aforementioned judgments:‑‑ (i) That a co‑plaintiff has a right to withdraw from a suit unconditionally and in case the cause of action is joint he should be allowed to withdraw as a plaintiff but should be transposed as a defendant so that the suit may not become improperly constituted. (ii) That the provision of Order 23, rule 1(4) do not apply to an order of withdrawal of the suit' by a co‑plaintiff and, hence, the suit in question or a fresh suit on the basis of independent cause of action by a co‑sharer in a partition suit will not be barred. (iii) That the provision of Order 1, Rule 10, C.P.C. empower the Court to add or delete a party to a lis suo motu or on the oral or written I application of a party. (iv) That all the procedures are meant for advancement of justice and not to entrap the litigants to a blind corner. (v) That amendment of the pleadings should be liberally allowed unless the proposed amendment will result in substitution of cause of action, or facts already within the knowledge of plaintiff at the time of filing of the suit not pleaded originally without sufficient cause are sought to be pleaded, which will make it altogether a new suit. (vi) That a plaintiff/petitioner deleting a party to the lis on the ground that the said party is neither proper nor necessary and no relief is claimed against such party, subsequently, cannot ask for impleadment of such a person as a party to the suit. (vii) That the principle of res judicata applies amongst the co‑defendants as well provided the issue of conflict of interest is finally decided amongst them as well provided the said issue decided with notice and knowledge (implied or express) of co‑defendant against whom the principle is being invoked. (viii) That in case a defendant is proceeded against ex parte it cannot be presumed that the said party had the knowledge of the pleas raised in the written statement which admittedly had not been served upon such a party.

10. I have considered the arguments addressed by the learned counsel for the parties, have gone through the record in the light of the principles of law referred to above. Admittedly, it is a partition suit wherein respondent No. 2 has been ordered to be impleaded as a defendant vide the impugned order. Although, it is established on record that respondent No. 2 had earlier filed a suit for partition which was dismissed for want of proof due to closure of her evidence and in the present suit she got her name deleted as a co‑plaintiff, yet the judgment rendered in the earlier suit as well as the order of deletion of name of respondent No. 2 as a co‑plaintiff will not debar the Court from ordering her impleadment as a defendant in the suit on motion of the respondent, No. 1, who is now the sole plaintiff in the suit and was only a defendant in the earlier suit and had been proceeded against ex parte and there is nothing on the record to show that she even had to the knowledge of the plea of the petitioners (claim of exclusive title) nor is there and contested adjudication of that plea between her and the petitioners. The respondent No. 2 being a co‑sharer, as being co‑heir of the deceased owner of the property in question, which is alleged to have been conveyed to the petitioner, she will definitely be a necessary party and without her presence the suit as such cannot be finally adjudicated upon. Law favours full and final adjudication of the disputes and avoids possibility of multiplicity of the proceedings. Impleadment of respondent No. 2 as a party to the suit is necessary even to decide the plea of res judicata raised by the petitioners. A joint property so long as it is partitioned by meets and bound remains joint, therefore, gives a recurring cause of action to the co‑sharers. The plea of res judicata shall be available to the petitioners to be raised in the written statement and shall have to be decided after recording of evidence on merits. Therefore, the argument of the learned counsel for the petitioner that in view of the dismissal of the earlier suit filed by respondent No. 2, the present suit is barred by the principle of res judicata, hence, the application filed by the respondent is liable to be dismissed, is repelled for the purpose of decision of the question of legality of the order of impleadment of respondent No. 2 and amendment of the plaint alone. Therefore, the order of impleadment of respondent No. 2 as party to the suit cannot be held to be illegal or a result of irregularity of exercise of jurisdiction by the learned lower Court and is quite in accord with the law declared in the above‑referred cases.

11. As regards the arguments of the learned counsel for the petitioners that the suit being barred by the principles of res judicata hence amendment in the plaint could not have been allowed and further that the proposed amendment amounts to introduction of new subject‑matter in the suit, the same is misconceived, as the question of applicability of the principle of res judicata to the suit in question shall be gone into by the learned trial Court if the same is raised in the amended written statement after recording of evidence as the plea of res judicata is a plea to be raised in defence or to be taken in support of a suit and is not a plea of bar of jurisdiction. Therefore, for the purpose of decision of the application for amendment of the plaint, the plea of res judicata in the facts and circumstances of this case will not be of much relevance particularly when there is no contested adjudication en the issue, raised in the suit between the plaintiff‑respondent No. 1, and the petitioners.

12. As regards argument of the learned counsel for the petitioners to the effect that factum of deed of conveyance being known to the plaintiff respondent No. 1 at the time of filing of the suit, by way of amendment the said conveyance cannot be allowed to be challenged on the plea of fraud, Contention raised by the learned counsel for the respondent No. 1. that she acquired knowledge of the deed of conveyance during the pendency of this suit, prima facie appears to be correct, as respondent No. 1 had been proceeded against ex parte in the earlier suit and had not been personally served. Even otherwise her service was allegedly effected through a telegram and registered post which were allegedly sent to her at an address which is not as yet reflected on the record of the case and, hence, it cannot presently be said as to whether the said telegram and the registered envelope were sent to her or were actually delivered to her or not. This question also has to be gone into during the course of trial of the suit in order to decide the effect of the previous decision in the partition suit filed by respondent No. 2 upon the maintainability of the present suit by the plaintiff‑respondent No.

1. Therefore, for the purposes of decision of the application seeking amendment of the plaint, it cannot be said on the present record that she had actual knowledge of the contents of the written statement which had admittedly not been served upon her. Therefore, prima facie plea raised by the learned counsel for respondent No. 1 that she had acquired knowledge of deed of conveyance during the pendency of this suit is probable and, hence, has to be believed for the purposes of decision of the application in question. Even otherwise, the plea regarding the challenge of deed of conveyance is a part and is in continuation of the original plea as raised in the suit wherein the respondent No. 1 has claimed a joint title in the suit house, hence, it cannot be said that the plea now sought to be raised by amendment in the plaint, is either inconsistent with the pleas already taken or is altogether a new plea. Therefore, it cannot be said that by the proposed amendment respondent No. 1 will bring in a new cause of action in the plaint Hence, Hence, it stands established that the impugned order which has been passed by the learned lower Court in exercise of his discretionary jurisdiction is neither contrary nor whimsical and is based upon sound legal principles. Substantial justice having been done in this case, I do not deem it proper to interfere with the impugned order in exercise of my discretionary jurisdiction.

13. Resultantly, I see no force, in this civil revision, hence, the same is dismissed with no order as to costs. M.BA./M‑1699/L Petition dismissed.