Narendra Nath Tiwari, J.

1. This Civil Revision Application is against the order dated 11.10.2004 passed by the learned Sub- Judge VII, Ranchi in Title Suit No. 241 of 2001 whereby the learned Court below has permitted the plaintiff to withdraw the Title Suit No. 241/2001. The petitioner was the Defendant No. 1 and he had appeared and contested the suit claiming his own independent right and title in the suit land. In his written statement he had, inter alia, taken the ground that the suit cannot proceed further in view of the pendency of previous instituted Title Suit No. 35 of 1990 in the Court of Munsif, Ranchi with respect to the same property. The petitioner had also contested the title of the plaintiff.

2. From perusal of the record, it appears that the Plaintiff/Opposite Party had filed the suit praying relief, inter alia, for declaration of her right and title in the suit property and for perpetual injunction restraining the defendants from interfering with the plaintiff possession. The plaintiff subsequently filed an application praying for permission to withdraw the suit unconditionally. The Defendant No. 1/Petitioner thereafter filed a petition under Order XXIII, Rule 1-A of the CPC praying therein for his transposition as a plaintiff in place of the original Plaintiff Dipti Mukherjee. By the impugned order, the learned Court below has permitted the plaintiff to withdraw the suit filed by the plaintiff and rejected the Defendant No. 1-Petitioners Petition praying for his transposition as a plaintiff in place of the present Defendant No. 1.

3. It is the admitted case of the parties that Title Suit No. 35/90 is pending in the Court of the Munsif involving almost the same issues which arise for adjudication in T.S. 241/2001. The petitioner had himself taken a ground in his written statement that in view of the pendency of the said earlier suit T.S. No. 241/2001 is liable to be stayed under provision of Section 10 of the CPC.

4. The learned Court below after considering the grounds made in the petition and all the materials on the record allowed the plaintiff to withdraw the suit and rejected the petition of the defendant No. 1 praying his transposition as the plaintiff. The Court below held that the plaintiff had a different cause of action and she had filed suit for declaration of title and for perpetual injunction against the Defendants whereas Defendant No. 1 has made out a case of independent claim of his title through his son Janab Salim Saheb who also sought to intervene in the subsequent suit on the basis that he has already filed a suit being T.S. No. 35/1990. The learned Court below has also observed that the prayer of the Defendant No. 1 cannot be allowed as in the instant suit there was conflicting claim of the plaintiff and the Defendant No. 1 and he cannot get any decree in his favour on the pleading of the original plaintiff in view of his own claim of right, title and interest over the suit property. In that circumstance transposition of the defendant No. 1 as plaintiff has been refused.

5. Mr. Jagdish Sahu, learned counsel appearing on behalf of Petitioner, submitted that the Court below has not properly appreciated the amended provision of Order XXIII, Rule 1-A, which provides that in a case in which the defendants want to proceed with the suit, the Court is duty bound to transpose him as a plaintiff and to proceed with the suit. Learned counsel of the petitioner further submitted that the petitioner cannot be allowed to withdraw the suit, rather the defendant No. 1 has to be transposed as the plaintiff and the present plaintiff as defendant to contest the suit. Learned counsel for the petitioner relied on a decision of Patna High Court Ranchi Bench rendered in the case of Md. Muzahid v. John Wilson Zedak and Anr., reported in 1988 PLJR 857 which according to him has been upheld by the Apex Court in Civil Appeal No. 1810/89. According to him the point involved in this case is squarely covered by the said decision where it has been held that the plaintiff cannot be allowed to withdraw the suit if there is an application for transposition of a defendant as a plaintiff. Learned counsel referred to the amended provision to Rule 1-A of Order XXIII which has been brought by way of amendment and submitted that after the addition of the said provision, the plaintiff has no absolute right to withdraw the suit and the suit has to be continued by allowing transposition of a defendant as the plaintiff, if such prayer is made.

6. Mr. P.K. Sinha, senior counsel appearing on behalf of the Opposite Party, on the other hand submitted that the petitioners petition and the submissions are wholly misconceived and are not supported by the provision of law. Mr. Sinha, submitted that even after the addition of Rule 1-A, Order XXIII in the Civil Procedure Code, the right of withdrawal of the suit by the plaintiff has not been taken away and the same still exists in Rule 1 of Order XXIII, CPC. According to the learned counsel, amended Rule 1-A, Order XXIII postulates a situation where the suit is withdrawn or abandoned by the plaintiff and one of the defendants has any substantial question to be decided as against any other defendants (not against the plaintiff). In this ease the defendant No. 1 contested the claim of the original plaintiff and has pleaded his own independent claim against the plaintiff and not against one or the other defendants and as such he cannot be transposed as a plaintiff in the same frame of the suit and on the basis, of the same cause of action.

7. After hearing the learned counsel and going through the relevant provisions of law, I find substance in the submissions of Mr. Sinha. On perusal of Order XXIII of the CPC, it is evident that Rule 1 has not been deleted and the plaintiffs right to abandon his claim or withdraw the suit has not been abolished. The plaintiff has filed a petition for withdrawal of the suit unconditionally and the same has been allowed by the Court below. Rule 1-A of Order XXIII provides for transposition of the defendant as the plaintiff but in a case where the suit is withdrawn or abandoned by the plaintiff under Rule 1 and one of the defendants applies for his transposition as a plaintiff. The Court in that case has to consider such application and if there is any substantial question to be decided as against any of the other defendants then in that case transposition can be allowed to continue with the suit. Rule 1-A envisages transposition of a defendant to proceed with the suit against one or the other defendants) if there is any substantial question to be decided as between the defendants and not against the original plaintiff. The Court has duly considered the petition and the provision of law and has rightly rejected the prayer of the petitioner for this transposition as the plaintiff. I find no error or illegality in exercise of jurisdiction by the learned Court below in passing the impugned order.

8. There is thus no merit in this application. It is, accordingly, dismissed.