S.H. Sheth, J.
1. The appellant in this appeal has applied for leave to withdraw the appeal. Respondent No. 2 has made this Civil Application for transposing him as the appellant in case the appellant is permitted to withdraw the appeal.
2. Mr. K.C. Shah who appears for the appellant has vehemently opposed the application made by respondent No 2 for transposing him as the appellant. In order to appreciate the rival contentions raised by the parties it is necessary to state a few facts. The plaintiff-appellant is the son of the brother of defendant No. I and defendant No. 2, respondent No. I and respondent No. 2 respectively. The plaintiff-appellant filed the suit for partition of the joint family property. The learned Trial Judge held that the suit property belonged exclusively to defendant No. I (respondent No. 1) and dismissed the suit. The plaintiff has challenged that decree in this appeal. If the plaintiff is allowed to withdraw the appeal, the finding recorded by the learned Trial Judge that the suit property-exclusively belongs to defendant No. 1 will also operate against defendant No. 2 and defendant No. 2 will be precluded from contending that the suit property is the joint family property and claiming his share therein. Therefore, if respondent No. 2 (defendant No. 2) is not transposed as appellant and if the appellant-plaintiff is allowed to withdraw the appeal, defendant No. 2 would be very seriously prejudiced in as much as he would be bound by the decree passed by the Trial Court and would not be in a position to challenge the finding recorded against him. Such a situation does not obtain in ordinary suits and appeals but it does obtain in a suit for partition of joint family properties and such other suits where all the parties are like plaintiffs because in such a suit a defendant is not necessarily interested in defending himself against the plaintiff's claim. He may as well support the plaintiff and claim his share without filing a separate suit for the purpose. The rights of the plaintiffs and the defendants in a partition suit are so intermixed and intertwined that any action on the part of an appellant or a plaintiff may unduly prejudice a defendant or defendants. In such a case interests of justice require that a respondent who is likely to be unduly prejudiced by the withdrawal of the appeal should be transposed as an appellant and should be permitted to proceed with the appeal so that he gets relief to which he is entitled on merits.
3. In Eduljl Muncherji Wooba v. Vullebhoy Khaubhoy and Ors. I.L.R. (1878) 7 Bombay, 167 the plaintiff had filed a suit for taking accounts of the partnership firm and had joined to that suit 21 defendants. He thereafter applied to the Court for leave to withdraw the suit or in the alternative he prayed that the suit might be dismissed. Out of 21 defendants 10 defendants supported the plaintiff's application for withdrawal or dismissal of the suit. Two defendants objected to the application for withdrawal and applied under Section 22 of the Civil Procedure Code, 1877, for transposing them as plaintiffs. The Court granted their application. While granting that application it was observed that a partnership suit is a suit of a peculiar character and that the parties to such a suit do not stand to each other precisely in the same relation as parties to suits generally. Next, it has been observed in that decision that each of the parties to a partnership suit, however he may be formally ranked, is really in turn plaintiff and defendant and in both capacities be comes before the Court for the adjudication of his rights relatively to the other partners which the Court endeavours to determine by its decree. What has been observed by the High Court of Bombay in regard to a partnership suit applies, in our opinion, with equal force to a suit for partition where also each one of the parties to the suit, however he may have been ranked, is plaintiff in his turn claiming his own share. If in the instant case respondent No. 2 is not transposed as appellant, respondent No. I would walk away without any let or hindrance with the entire property and for aught we know the appellant might have colluded with him.
4. In Devsey Khetsey v. Hirji Kfiairal 43 Bombay Law Reporter 993 plaintiff Devsey filed a suit for dissolution of partnership between him and the defendant Hirj and for taking partnership accounts. During the pendency of the suit the plaintiff died. When the suit came up for hearing the defendant applied to transpose him as plaintiff in the suit and to give him leave to bring the heirs of the original plaintiff as defendants to the suit. The High Court of Bombay followed the principle laid down in the case of Eduiji MuncherJi Wacha (supra) and granted the application. It may be noted that in that case the heirs and legal representatives of the original plaintiff who had died had not made an application for substitution of their names in order to enable them to prosecute the suit.
5. That a plaintiff may be transposed as a defendant and a defendant may be transposed as a plaintiff is therefore well-settled in light of the principle laid down in the decisions to which we have referred above. Whether an appellant can be transposed as a respondent and a respondent can be transposed as an appellant also poses no difficulty at all.
6. In Smt. Saila Fala Dassi v. Smt. Nirmala Sundari Dassi and Anr. : 1SCR1287 the Supreme Court has laid down that it is within the power of the Court to take action suo motu, if it is necessary to do so, either under Order I, Rule 10 or in its inherent jurisdiction and to transpose an appellant as a respondent in the appeal.
7. In Rachaballabh Prasad Narain Singh v. Raghunath Lal and Ors. A.I.R. 1939 Patna 397 a Division Bench of the Patna High Court, relying upon the two decisions of the Privy Council referred to therein, has held that transposition of parties under Order I, Rule 10 is permissible even in a second appeal in the High Court. We, therefore, see no difficulty in applying that principle to the First Appeal with which we are concerned.
8. It has been argued on behalf of the appellant and respondent No. I that the transposition of respondent No. 2 as the appellant would be subject to law of limitation. We are not impressed by that argument.
9. In Bhubneshwar Prasad Narain Singh v. Sidheswar Mukherjee and Ors. A.I.R. 1949 Patna 309 a Division Bench of the Patna High Court has laid down that where a respondent is transposed as an appellant, the appeal as regards him will not be deemed to have been instituted when he is so made an appellant. The appeal is one and the date of its fixing even as regards the transposed respondent will be the date on which it was originally instituted. We are in complete agreement with the principle laid down by the Patna High Court in the aforesaid decision. We are, therefore, unable to accept the argument raised on behalf of the appellant and respondent No. 1 that the transposition of respondent No. 2 as the appellant would be subject to the bar of limitation.
10. The last argument which has been raised is that the appellant who has applied for leave to withdraw the appeal was permitted to institute the appeal in forma pauperis and that if respondent No. 2 is ordered to be transposed as the appellant, he would not be entitled to prosecute the appeal in forma pauperis. That argument raised on behalf of the appellant and respondent No. 1 is well-founded. The finding recorded as to pauperism can be taken benefit of only by the appellant and not by respondent No. 2 In our opinion, therefore, respondent No. 2 will be liable to pay the Court-fees on the Memorandum of appeal.
11. Reference has been made to two more decisions of the Supreme Court. The first decision is in Bijayananda Patnaik v. Satrughna Sahu and Ors. : 2SCR538 . The appeal before the Supreme Court in that case arose out of an election petition. What holds good in case of an election petition does not necessarily hold good in case of a partition suit or an appeal arising out of a partition suit. Therefore, what the Supreme Court has laid down in that decision on the applicability of Order 23, Rule I cannot proprio vigore be applied to the instant case.
11.1. The last decision to which reference has been made is in M/s Rules Bai Baij Nath v. Firm M.D. Bass and Co. A.I.R. 1968 Supreme Court III. This decision to which Mr. K.C. Shah has invited our attention does not help him at all. It has been laid down by the Supreme Court in that decision that in a suit for rendition of accounts by the principal against his agent the principal is entitled to withdraw the suit even at the stage when issues have been framed and some evidence has been recorded but no preliminary decree for rendition of accounts has yet been passed. It has been further observed in that decision that the defendant cannot insist that the plaintiff must be compelled to proceed with the suit. It clearly follows from the principle laid down by the Supreme Court in that decision that if a preliminary decree for rendition of accounts has been passed, the plaintiffs cannot be allowed to withdraw the suit. It must be so for the simple reason that on taking accounts pursuant to the preliminary decree passed in such a suit it may as well be that the defendant may have to recover some amount from the plaintiff. Such a right cannot be allowed to be defeated by allowing the plaintiff to withdraw the suit. The implication which follows from the principle laid down by the Supreme Court in that case applies with a great deal of force to the present case where for no fault of his the finding recorded in favour of respondent No. 1 by the learned Trial Judge would operate to the prejudice of respondent No. 2 in our opinion, therefore, to permit the appellant to withdraw the appeal and to reject the application made by respondent No. 2 to transpose him as the appellant would amount to defeating the ends of justice and causing undue prejudice to respondent No. 2.
12. We, therefore, grant the application made by respondent No. 2 and order that he should be transposed as the appellant in First Appeal No. 492 of 1971 and further direct that the appellant shall be transposed as respondent No. 2 irrespective of whether he wants to contest the appeal or not. We further direct that respondent No. 2 who has been transposed as the appellant in the appeal shall pay within two weeks-the Court-fees payable on the Memorandum of appeal. It necessarily follows from this order that the application made by the appellant for with drawal of the appeal stands rejected.