Makhan Singh and Others vs Ram Piari and Others

Ram Chand Gupta, J.—The present revision petition has been filed under Article 227 of the Constitution of India for setting aside order dated 10.5.2006, Annexure P3, passed by learned Additional Civil Judge, Senior Division, Abohar.

I have heard learned Counsel for the parties and have gone through the whole record carefully including the impugned order passed by learned trial Court.

It has been contended by learned Counsel for the Petitioners that vide impugned order, learned trial Court ordered for consignment of the file to the record-room without deciding application of present Petitioners filed under Order 1 Rule 10 of the CPC (hereinafter to be referred as ''the Code'') for their transposition as Plaintiffs in the suit. Prayer has been opposed by counsel for the Respondent-Defendants that the application itself is not maintainable. The impugned order passed by learned trial Court reads as under:

Defendant No. 10, Sudesh Kumar has filed an application for dismissal of the suit. It is submitted in the application that all the Plaintiffs have made statement in the court that they do not want to proceed further and suit may be dismissed as withdrawn. After making this statement none appeared in the court on behalf of the Plaintiffs. There is an application under Order 1 Rule 10 CPC read with Sections 94/151 of CPC for ordering the transposition of the applicants/Defendants as the Plaintiffs in the suit. Learned Counsel for Defendants No. 29 to 33 has argued that Defendants/applicants have filed an application for their transposition as Plaintiffs in the suit. Heard. As the Plaintiffs have already made statement withdrawing the suit vide their statement dated 5.8.2005 made by attorney of Plaintiffs No. 1 to 6 and 8, file be consigned to the record room, Ferozepur.

A perusal of aforementioned order shows that learned trial Court had ordered for consignment of the file to record-room without deciding the application filed by Petitioners under Order 1 Rule 10 of the Code. Even no order for dismissing the suit as withdrawn has been passed, though there is statement of original Plaintiffs for withdrawing the suit, which is dated 5.8.2005. Hence the impugned order cannot be sustained in the eyes of law.

In view of these facts, the present revision petition is accepted. The impugned order is set aside. Learned trial Court is directed to pass appropriate order afresh after hearing both the parties on the application under Order 1 Rule 10 of the Code filed by present Petitioner-Defendants. Parties are directed to appear before learned trial Court on 7.4.2011.

Disposed of accordingly.