Common Order:

1. Heard Sri Naresh Varma Bavandlapelli, learned counsel for the petitioners and Sri T.L.Krishna Prasad, learned counsel for the respondents. Perused the entire record.

2. The Civil Revision Petitions are filed by the petitioner Nos.2 to 4 herein/proposed defendant Nos.2 to 4, aggrieved by the orders dated 06.11.2024 passed by the learned Junior Civil Judge-cum-Judicial Magistrate of First Class at Sulthanabad, (‘trial Court’), in I.A.Nos.448 and 449 of 2023 in O.S.No.214 of 2022 respectively, wherein interlocutory applications filed by respondent No.2 herein/defendant No.2 under Order I Rule 10 and Order XXIII Rule I-A of CPC to transpose her as plaintiff and Order I Rule 10 and Order XXII Rule 3 read with Section 151 of CPC to implead legal representatives of sole deceased-plaintiff as defendant Nos.2 to 4, respectively have been allowed.

3. The background facts of the case are that deceased petitioner No.1 filed suit in O.S.No.214 of 2022 on the file of the trial Court seeking partition and separate possession with respect to the properties of his late father Hanumantha Rao. During the subsistence of the said suit, I.A. was filed to restrain respondent No.1 from alienating the suit schedule property during the pendency of the suit. While the suit was pending, on 07.07.2023 the sole plaintiff-petitioner No.1 died in suspicious circumstances. On his death, the counsel on record reported that petitioner No.1 died and not pressed the suit. The grievance of the respondents herein began after death of petitioner No.1. After the death of petitioner No.1, his wife i.e., petitioner No.2 herein illegally confined respondent No.1 herein and vandalized house of the respondent No.2 and also forcibly got executed registered sale deeds in favour of the legal heirs of the deceased petitioner No.1 i.e. petitioner Nos.2 to 4 herein. It is the specific case of respondent No.2 that only to deprive her rights and in order to overcome the injunction existing, wherein respondent No.1 was restrained from executing a sale deed, the counsel on record has cleverly got the suit dismissed as withdrawn paving way for forcible registration of conveyance deeds by the respondent No.1 in favour of petitioner Nos.2 to 4 herein. In that context, respondent No.2 to exercise her rights in the suit schedule property which belongs to her father i.e., Late Hanumanth Rao and mother i.e. respondent No.1, now proposes to transpose herself as the plaintiff in the suit and also sought to implead the legal heirs of the deceased-petitioner No.1 herein/sole plaintiff as defendant Nos.2 to 4 in the main suit and for said purpose, I.As. under revision were filed.

4. The learned trial Court considered the case of both the parties and allowed both the petitions. While referring to the facts of the case, it is held that the main suit is filed for partition of suit schedule property and during pendency of the suit petitioner No.1 herein/ plaintiff died. The suit was withdrawn by the counsel on record without bringing the legal heirs on record wherein the rights of legal heirs of the plaintiff/petitioner No.1 and defendants/respondents herein are affected, as alleged by respondent No.2 herein. It is also observed that after withdrawal of the suit, petitioner Nos.2 to 4 herein forcibly got suit schedule properties registered in their names from respondent No.1 and the same is evident from the counter filed. It is observed that respondent No.2 intended to transpose herself as plaintiff and as such she is the master of suit and she can file suit or bring parties on record against whom her rights are deprived. Both the parties raised issues with respect to registration of property and family partitions and said issues cannot be decided at this stage and therefore, respondent No.2 herein was permitted to transpose herself as plaintiff and the legal heirs of the deceased-petitioner No.1 were impleaded as defendant Nos.2 to 4 in the suit. Aggrieved by the same, the present revisions are preferred.

5. In C.R.P.No.4213 of 2024, petitioner Nos.2 to 4 pleaded that there is application of abatement to the suit when no petition is filed within 90 days from the date of knowledge of death of petitioner No.1, but the applications were filed surreptitiously on 21.11.2023. When the deceased petitioner No.1 died on 07.07.2023, on account of passing of 90 days, there is an error committed in receiving the applications which are barred by limitation. Further, it is pleaded that two reliefs cannot be sought in one I.A. unless the relief is consequential. The I.As. are independent and they cannot be called consequential. Therefore, it is pleaded that there is error committed in receiving the applications and prosecuting them. It is pleaded that while there is claim of forcible execution of sale deeds there is also admission about receipt of sale consideration. Since there is receipt of sale consideration there cannot be any occasion for applying force against respondent No.1 and there can be no admission on the part of respondent No.1 about forcible execution of sale deeds. It is urged that only at the intervention of village elders, the resolution of the property took place and there was no case of vandalizing or wrongful confinement. It is urged that in a suit for partition and separate possession every party is a plaintiff, but when the suit is not pressed no malice can be attributed to the Court. Respondent No.2 did not bring to the Court's notice to recall the order by itself if the suit was withdrawn and there was always recourse for filing a petition for restoration of suit. But there is silence on the part of respondent No.2 and the same shows that the applications under revision have been filed without any semblance of truth.

6. In C.R.P.No.4214 of 2024, petitioner Nos.2 to 4 urged that to transpose a party either from array of plaintiffs, it is settled law that facts shall make out such a case. But there is no such occasion in the present case, as respondent No.2 is not in a position to defend herself. Therefore, there are no grounds for allowing the application. Further, it is urged that once an application is filed to bring legal heirs on record, which is subject matter of I.A.No.449 of 2023 and the same is ordered, and unless an order copy is furnished, transposing of the parties will not arise, and therefore, there is an error committed in passing the impugned order.

7. A perusal of the record and the arguments of the learned counsel for both the parties shows that there was a suit for partition and separate possession filed by the deceased plaintiff/petitioner No.1 herein and during pendency of said suit he died. Immediately after death of petitioner No.1, the counsel on record filed a memo and not pressed the suit. In effect, there is no suit in existence as the suit filed by petitioner No.1 is not pressed. Following the suit being not pressed, there is no initiative on the parts of legal heirs of the deceased petitioner No.1 to pursue the suit. They remained silent. Whereas, there is a cause of action for prosecuting the suit by the respondent No.2 and it is alleged that subsequent to death of petitioner No.1, respondent No.1 herein, who is second wife of father of petitioner No.1, has been illegally confined and under duress certain sale deeds have been forcibly executed in favour of the legal heirs of petitioner No.1 i.e., petitioner Nos.2 to 4 herein. It is alleged that the suit was not pressed only to terminate/vacate the injunction order against respondent No.1 which prevented her from executing registered sale deeds in the concerned Sub-Registrar Office. By not pressing the suit, said injunction order got vacated and consequently, the legal heirs of petitioner No.1 successfully got the registered sale deeds executed in their favour by subjecting respondent No.1 to duress and coercion.

8. While appreciating the version of both the respective parties, it is a point to be seen that as per law, the suit filed by deceased petitioner No.1 is no longer existing as it has been not pressed. In case, respondent No.2 intends to continue with the prosecution of said suit, respondent No.2 ought to have got the suit restored by filing appropriate application. In the instant case, there is no petition filed for restoration of the suit and without restoration of the suit, the interlocutory applications under revision have been filed one to transpose and the other to implead the proposed parties/petitioner Nos.2 to 4.

9. While there is discussion about the case law referred by petitioner Nos.2 to 4 herein in the case of Anil Kumar Singh v. Vijay Pal Singh((2018) 12 SCC 584), wherein it is held that when the plaintiff files an application for simple withdrawal he does so as a matter of right and the defendant cannot compel the plaintiff to prosecute the suit. The defendant merely has a right to seek imposition of costs. However, the defendant has a right to object as to whether the application should be allowed or not on merits.

10. In the instant case, when the plaintiff/petitioner No.1 herein died, automatically after lapse of 90 days the suit gets abated. Alternatively, a memo is filed by the counsel on record at the behest of the legal heirs of the plaintiff and the suit is not pressed. In either case, the suit is no longer on record of the learned trial Court. Therefore, there can be no question of filing any applications in a suit which is not restored. In case respondent No. 2 has any grievance which she needs to prosecute, she ought to have either sought restoration of the suit or alternatively filed a fresh suit, but respondent No.2 has not followed either of the remedies available. Rather she filed the interlocutory applications under revision in a suit which is no longer in existence and therefore the relief granted by the trial Court in favour of respondent No.2 is a nullity. There is no procedure for transposing parties or impleading parties to a suit which has already been dismissed as not pressed and taken off record. Therefore, the Civil Revision Petitions are to be allowed setting aside the impugned orders passed by the trial Court.

11. In the result, the Civil Revision Petitions are allowed and the orders dated 06.11.2024 in I.A.Nos.448 and 449 of 2023 in O.S.No.214 of 2022 on the file of the learned Junior Civil Judge-cum-Judicial Magistrate of First Class at Sulthanabad, are set aside and consequently, the said interlocutory applications are dismissed. There shall be no order as to costs. Miscellaneous applications, if any, pending shall stand closed.