(Matte) Narayanamurthi and Others vs (Parankusam) Venkatayya and Others

Wallace, J.—This revision petition is against the order of the lower Court permitting the two defendants (Respondents Nos. 1 and 2) in O.

S. No. 35 of 1922 to have set aside the order of the Court permitting the plaintiff in the suit to withdraw it. The plaintiff in the suit and these two

respondents are said to be members of an original joint family from which the plaintiff separated five or six years ago. Prior to the separation they

had obtained a joint decree against Defendants Nos. 3 to 6 on a promissory note. The plaintiff filed O. S. No. 35 of 1922 to declare that certain

decrees and sales, which gave Defendants Nos. 1 and 16 possession of properties, belonging to Defendants Nos. 3 to 6 were void and intended

to defeat and delay creditors. To that suit Respondents Nos. 1 and 2 were made Defendants Nos. 8 and 9, and in their written statement they

supported the plaintiff''s case. On 9th January 1924, to which date the suit was posted for hearing, the plaintiff filed a petition requesting permission

to withdraw the suit. At the adjourned hearing on 18th January 1924, that was allowed. The suit had also been posted for that day and

Respondents Nos. 1 and 2 were absent. The suit was then dismissed. The Respondents Nos. 1 and 2 applied to the lower Court to set aside that

order and allow them to prosecute the suit. This the lower Court has allowed and the first defendant brings this revision petition.

Prima facie these respondents had no locus standi to move their application. They were not plaintiffs in the suit, and the dismissal of the suit is

not an ex parte dismissal, but at the request of the plaintiff, but the lower Court has held that, in the circumstances of the case, they were

prejudiced by the order ""passed"" behind their back, and that they must be considered to be also plaintiffs in the suit, and that the order dismissing

the suit was to all intents and purposes an ex parte order against them as quasi plaintiffs in their absence under Order 17, Rule 2 and has set it

aside by an order under Order 9, Rule 13.

This somewhat tortuous argument does not appear to me to be convincing and is not supported by any quotation of authorities. The fact remains

that Respondents Nos. 1 and 2 are not and never were plaintiffs in the suit. It was open to them to have moved to be added as plaintiffs, but they

did not so move. Their argument is, that they believed that the plaintiff would conduct the case properly and, therefore, abstained from being

present at the hearing of the suit. They had engaged a separate vakil but he, too, did not appear at the hearing of the suit. The suit itself was posted

for hearing on 18th January 1924, on which day the order allowing the plaintiff to withdraw was passed. Respondents Nos. 1 and 2 or their

pleader ought to have been present at the hearing of the suit at least on 18th January 1924, when they could have urged anything they had to urge

against the granting of the plaintiff''s application. If parties are so careless and negligent of their own interests, they cannot expect the Court to save

them from the natural result of their conduct.

They plead that they trusted the plaintiff to go on with the suit on their behalf. There is nothing to show that the plaintiff ever encouraged them in

such a belief. The plaint does not read to me as a representative one by plaintiff on behalf of himself and Respondents Nos. 1 and 2. In fact, if it

was representative there was no point in adding these respondents as defendants and there are many passages which would go to show that it was

not representative. (Then his Lordship after considering evidence proceeded). It is perfectly obvious that this is not a representative suit. The

plaintiff does not ask here a decree in any representative capacity or on behalf of Respondents Nos. 1 and 2 also. Nothing in my view can be

inferred from the fact that the plaintiff sues for Rs. 3,100. The amount due under the joint promissory note was about Rs. 5,600 or Rs. 6,000. The

plaintiff does not say how he arrived at Rs. 3,100 or that it represents anything more than what was due to him above.

There is in the plaint, far from an assertion that the plaintiff is litigating for others, a repudiation that he is doing so, and the decree asked for is

not going to bind Respondents Nos. 1 and 2 against claiming their share separately. If, in these circumstances, Respondents Nos. 1 and 2 chose

not to appear in the suit, I think their conduct is so grossly careless that they have no claim to be absolved from the results of it by a violent process

of reasoning which turns them from defendants into plaintiffs, and holds that their default of appearance as defendant is equivalent to default of

appearance as plaintiff. It is not a case under Order 23, Rule 1 (4). If the plaintiff has defrauded them they have a remedy aliunde against him and if

they have the other defendants in the suit, they can bring a suit of their own. I can see no justification for holding that they are entitled to have the

order allowing the plaintiff to withdraw the suit set aside and there is no provision of law under which this relief which the lower Court has given

them can be given.

The lower Court has seriously erred in the exercise of its jurisdiction and its order must be set aside, and it is hereby set aside with costs here

and below.