The High Court
Case Details
2025:JHHC:35537 IN THE HIGH COURT OF JHARKHAND AT RANCHI C.M.P. No. 1093 of 2025 ------ Sushmita Bose @ Sushmita Bose Mallik, wife of Avik Bose, resident ofA- 1006, Raheja Residency, Off Gen. A.K. Vaidya Marg, Film City Road, Dindoshi, Malad, East Mumbai, P.O. & P.S. Dindoshi, District Mumbai, Maharashtra Petitioner .... …. .... Versus
Legal Reasoning
1. Dr. Samiran Mallik, son of Late Hemendra Chandra Mallik, resident of 349, Co-operative Colony, Sonali Bokaro Steel City, P.O. & P.S. Bokaro, District Bokaro 2. Mrs. Iva Mallik, wife of Late Satindra Chandra Mallik, resident of House of Late S.C. Mallik, opposite Police Lane, P.O. & P.S. Dhanbad, District Dhanbad 3. Sri Saibal Mallik, son of Late Shailendra Chandra Mallik, resident of 192A, Bariatu Road, near Maheshwari Medical Hall, P.O. & P.S. Bariatu, District Ranchi 4. Sri Surajit Mallik, son of Late Shailendra Chandra Mallik, resident of 192A, Bariatu Road, near Maheshwari Medical Hall, P.O. & P.S. Bariatu, District Ranchi 5. Mrs. Anuradha Sen Gupta, daughter of Late Shailendra Chandra Mallik, resident of 192A, Bariatu Road, near Maheshwari Medical Hall, P.O. & P.S. Bariatu, District Ranchi 6. Mr. Arundhati Mallik, daughter of Late Shailendra Chandra Mallik, resident of 192A, Bariatu Road, near Maheshwari Medical Hall, P.O. & P.S. Bariatu, District Ranchi 7. Mrs. Mou Mallik, wife of Late Sri Subhashish Mallik, resident of House of Late S.C. Mallik, opposite Police Lane, P.O. & P.S. Dhanbad, District Dhanbad 8. Mr. Jutika Roy, daughter of Late Hemendra Chandra Mallik, resident of 192A, Bariatu Road, near Maheshwari Medical Hall, P.O. & P.S. Bariatu, District Ranchi 9. Dr. Subrata Gupta, son of Late Mrs. Aloka Gupta, resident of 192A, Bariatu Road, near Maheshwari Medical Hall, P.O. & P.S. Bariatu, District Ranchi 10. Dr. Sujoy Gupta, son of Late Mrs. Aloka Gupta, resident of 192A, Bariatu Road, near Maheshwari Medical Hall, P.O. & P.S. Bariatu, District Ranchi 11. Mrs. Puravi Gupta, daughter of Late Mrs. Arati Gupta, resident of 192A, Bariatu Road, near Maheshwari Medical Hall, P.O. & P.S. Bariatu, District Ranchi 12. Mrs. Surabhi Gupta, daughter of Late Mrs. Arati Gupta, resident of 192A, Bariatu Road, near Maheshwari Medical Hall, P.O. & P.S. Bariatu, District Ranchi 13. Mrs. Kala Gupta, wife of late Debashish Gupta, resident of 192A, Bariatu Road, near Maheshwari Medical Hall, P.O. & P.S. Bariatu, District Ranchi 14. Mr. Debranjan Mallik, son of Late Debyendra Chandra Mallik, resident of House of Late S.C. Mallik, opposite Police Lane, P.O. & P.S. Dhanbad, District Dhanbad 1 2025:JHHC:35537 15. Mrs. Nandita Sen, daughter of Late Debyendra Chandra Mallik, resident of AA-180, Sector- 1, Salt Lake, P.O. & P.S. Kolkata, District Kolkata 16. Nivedita Mallik, daughter of Late Subhendra Chandra Mallik, resident of Sagar Vila, Flat 4D, Block A, Raghunathpur East, North 24 Pgs, P.O. & P.S. Kolkata, District Kolkata, West Bengal 17. Malavika Sengupta, daughter of Late Subhendra Chandra Mallik, resident of Flat 1005, Devika Apartment, opposite Shoprix Mall, Dharam Marg, Sector 4, Vaishali I.E. Sahibadad, P.O. & P.S. Ghaziabad, District Ghaziabad 18. Mrs. Swapna Mallik, wife of Late Samendra Chandra Mallik, resident of Kulti, Sripur Road, P.O. & P.S. Bardhaman, District Bardhaman, West Bengal 19. Bhanu, son of Late Mrs. Kalyani Majumdar, resident of House of Late S.C. Mallik, opposite Police Lane, P.O. & P.S. Dhanbad, District Dhanbad 20. Netai, son of Late Mrs. Kalyani Majumdar, resident of House of Late S.C. Mallik, opposite Police Lane, P.O. & P.S. Dhanbad, District Dhanbad 21. Smt. Ratna Devi, daughter of Late Mrs. Kalyani Majumdar, resident of House of Late S.C. Mallik, opposite Police Lane, P.O. & P.S. Dhanbad, District Dhanbad 22. Sapna, daughter of Mrs. Kalyani Majumdar, resident of House of Late S.C. Mallik, opposite Police Lane, P.O. & P.S. Dhanbad, District Dhanbad 23. Dr. Pinaki Ranjan, son of Late Neelima Gupta, resident of House of Late S.C. Mallik, opposite Police Lane, P.O. & P.S. Dhanbad, District Dhanbad 24. Mithu, daughter of Late Mrs. Sunanda Baxsi, resident of House of Late S.C. Mallik, opposite Police Lane, P.O. & P.S. Dhanbad, District Dhanbad 25. Tutun, daughter of of Late Mrs. Sunanda Baxsi, resident of House of Late S.C. Mallik, opposite Police Lane, P.O. & P.S. Dhanbad, District Dhanbad .... .... .... Opposite Parties CORAM: HON’BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY For the Petitioner For the Opp. Parties : : Ms. Piyushita Neha Tudu, Advocate Order No.02 / Dated : 26.11.2025 Instant civil miscellaneous petition has been filed under Article 227 of the Constitution of India for quashing the order dated 28.09.2022 passed in Original (Partition) Suit No.214 of 2019 by learned Civil Judge (Senior Division)-V, Dhanbad whereby and whereunder a petition seeking permission to withdraw the suit by the plaintiff has been allowed and consequently, the suit has been dismissed as withdrawn. The petitioner was impleaded in the said suit as defendant and in the instant writ petition seeks transposition under Order XXIII Rule 1A of the CPC in the said partition suit. 2. It is argued by the learned counsel on behalf of the petitioner that 2 2025:JHHC:35537 the suit was withdrawn even without service of notice or summons on her. 3. Main grievance of the petitioner is that the withdrawal was allowed without hearing the petitioner/defendant and in the said backdrop, a direction has been sought to the trial Court to transpose the petitioner as a plaintiff to permit the suit to be prosecuted on her behalf. 4. On perusal of the impugned order, it appears that the suit was filed impleading the original 27 defendants and subsequently, 04 defendants were further added on the ground that the plaintiff was old and suffering from several ailments and therefore, was not inclined to proceed with the case. 5. This Court is of the view that since the withdrawal of the suit was ordered before appearance of the defendant/petitioner, therefore, right of transposition will not inure in her favour. This is for the reason that Order XXIII Rule 1A of the CPC can be invoked by a party, who has already appeared before the Court and wishes to continue the suit. The defendant, who has not been served notice and had not entered appearance “has not yet become a party before the Court” for the purpose of the Order XXIII Rule 1A of the CPC. 6. Since the party had not appeared when the withdrawal was ordered, no vested right had accrued in her favour for being transposed. Under the circumstance, transposition will not be maintainable in the said suit already withdrawn. However, the petitioner will be at liberty to file a partition suit for the said relief. Civil Miscellaneous Petition accordingly, stands dismissed. Pending
Decision
Interlocutory Application, if any, is disposed of. Anit Uploaded 28.11.2025 (Gautam Kumar Choudhary, J.) 3