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Judgment
Shiv Narayan Dhingra, J.—This application has been moved by the plaintiffs/applicants Ms. Ruby Jain and Smt. Rajni Jain u/s 5 of the Limitation Act, 1963 for condonation of delay in filing accompanying application u/s 114, Order 47 Rule 1 CPC and Section 151 CPC being IA No. 11026 under Order 47 CPC. It is stated in the application that the applicants came to know about the passing of the order dated 19th July 2006 only on 16th September 2006 i.e. on the day of ''sharadh'' ceremony of their father Late Shri K.L. Jain when their mother enquired from their brothers about the status of the case and she was informed that the instant suit had been withdrawn. The applicants/plaintiffs thereafter contacted their Advocate Mr. G.N. Aggarwal and apprised him of facts and about the status of the instant suit. He then got the file inspected on 26th September 2006 on an application for inspection dated 19th September 2006. Thereafter the instant application was made on 28th September 2006.
It is stated that the delay in filing of the application was neither intentional nor due to any negligence on the part of applicants. The delay was on account of the fact that the applicants learnt about the order only on 16th September 2006 and thereafter they immediately took steps to move the application.
On the other hand, in the reply to the application it is stated by the non-applicants/brothers of the applicants that mother of applicants was living with them and hence there was no occasion for her to ask about the status of the case at the ''sharadh'' ceremony of their father and the plea taken by the applicants was a false one.
It apparent from the record that the two sons (plaintiffs) were looking after the case. They made a statement in the Court that they, with the consent of their mother wanted to withdraw the instant suit. They had not made a statement that they had consent of other plaintiffs. I consider that this Court should have issued a notice to other plaintiffs/applicants in view of Section 23(1)(5) CPC, of the intention of two of the plaintiffs of withdrawing the suit. The applicants could have come to know about the intention of the two brothers only on receipt of notice. Since no notice was served by this Court on other plaintiffs, the plaintiffs could have filed the application only after gaining knowledge. There is no reason to believe about the applicants'' gained knowledge through any other source. It is not the case of other plaintiffs or for that matter of the defendants that the applicants had any other source of gaining knowledge.
In view of above facts, the application for condonation of delay in filing the accompanying application being IA No. 11026 is allowed. The delay in filing the application being IA No. 11026 is hereby condoned.
The application stands disposed of.
IA No. 11026/2006
This application u/s 114 and under Order 47 Rule 1 and Section 151 CPC has been made by the applicants/plaintiffs No. (iii) and (vi) for reviewing/setting aside the order dated 19th July 2006 passed by this Court in the instant suit. It is submitted by counsel for the applicants that on 19th July 2006, this Court passed the following order:
19.07.2006
Present: Mr. J.N. Verma, Advocate for the plaintiff.
Mr. Sandeep Aggarwal, Advocate for the defendant.
CS(OS) No. 714/1982
Learned Counsel for the plaintiff states that he has instructions from Shri Praveen Jain, Shri Vijay Jain and also on behalf of Smt. Satya Jain to withdraw the present suit. His clients intend to prosecute the pending criminal cases initiated by them against the erstwhile partners of their late Father.
In these circumstances, the Suit as well as the pending applications stand dismissed as withdrawn, with no order as to costs.
July 19, 2006
JUDGE
While passing the above order, statements of Mr. Praveen Jain and Mr. Vinay Jain, plaintiffs, were recorded to the following effect:
Statement of Shri Praveen Jain, son of late Shri K.L. Jain, aged about 49 years, resident of 65/79, New Rohtak Road, Karol Bagh, New Delhi on SA.
After discussing the matter with my brother and my mother, I do not wish to proceed with the present suit and seek leave of the Court to withdraw it.
RO & AC/19th July, 2006
JUDGE
Statement of Shri Vinay Jain, son of late Shri K.L. Jain, aged about 49 years, resident of M1/43, Vallabh Vihar, Sector-13, Plot No. 14, Rohini New Delhi on SA.
After discussing the matter with my brother and my mother, I do not wish to proceed with the present suit and seek leave of the Court to withdraw it.
RO & AC/19th July, 2006
JUDGE
It is apparent from the order that the suit was dismissed as withdrawn at the behest of two plaintiffs viz Mr. Praveen Jain and Mr. Vinay Jain and none of the other plaintiffs were present at the time of withdrawal of the instant suit.
The suit was initially filed by Late Mr. K.L. Jain, who died during pendency of the suit. On an application under Order 22 Rule 3 CPC the legal heirs of Shri K.L. Jain were substituted as plaintiffs on 9th April, 2003. The legal heirs, substituted included the two applicants, who filed the present application. The suit proceeded further after substitution of legal heirs and pleading and evidence of parties were completed. The suit was fixed for final hearing when two plaintiffs viz Mr. Praveen Jain and Mr. Vinay Jain plaintiffs made the statements as above and the suit was accordingly dismissed as withdrawn vide above order.
It is submitted by the applicants that in view of Order 23 Rule 1(5) CPC, the suit could not have been allowed to be withdrawn at the behest of only two of the plaintiffs and in this way the valuable right of the plaintiffs to pursue the suit has been taken away by the order of this Court. Provisions of Order 23 Rule 1(5) CPC reads as under:
(5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under Sub-rule (1), or to withdraw, under Sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs.
It is, therefore prayed that this Court should recall/review the order and allow the suit to be prosecuted by the applicants/plaintiffs. The suit is at the final stage and only arguments are to be heard finally.
Notice of the application was sent to the defendants and other plaintiffs. In reply to application it is stated by non-applicants that this Court has no power to recall its earlier order. Though the application has been filed by the applicants/plaintiffs under Order 47 Rule 1 CPC a provision for review of the order, but the prayer made in the application is for recall of the order. It is submitted that the Court had not only recorded the statement of the two plaintiffs but had also recorded the statement of the counsel and statement of the counsel of plaintiffs was based on the instructions of all the LRs of deceased Late Shri. K.L. Jain. There was no decision on merits and therefore no review was possible. It is submitted that the application was an abuse of process of law.
It is apparent from the record that on 19th July 2006 only two of the plaintiffs viz Mr. Praveen Jain and Mr. Vinay Jain were present. In the statement they stated that they had discussed the matter with their mother and with each other. They did not state that they have consent of other plaintiffs to withdraw the suit. Even the counsel made statement that he has instructions from two brothers and Mrs. Satya Jain. He had therefore no instructions from other plaintiffs.
I consider that this Court should have issued notice of the application to other plaintiffs as well before allowing the two of the plaintiffs to withdraw the instant suit. It seems that since two brothers were looking after the suit, other plaintiffs reposed faith in them. All LRs thought that whatever brothers would do, will be in the best interest of other plaintiffs. However, it was necessary for two brothers to take all the plaintiffs in confidence at the time of withdrawal of the instant suit. It is apparent from the statements of the two plaintiffs viz Mr. Praveen Jain and Mr. Vinay Jain, made before this Court, that they had not taken other plaintiffs in confidence and made statements regarding withdrawal of the suit without obtaining concurrence of the applicants/plaintiffs.
I consider that in view of the provisions of Order 23 Rule 1(5) CPC narrated above, this Court could not have allowed the two plaintiffs to withdraw the suit qua all the plaintiffs and should have served a notice on the other plaintiffs. Since this error is apparent on the face of record, it would be just and proper to review the order. Accordingly, the application is allowed and order dated 19th July 2006 is reviewed. The instant suit is accordingly restored to its original number vis-�-vis applicants. However, the suit shall stand withdrawn qua the two plaintiffs Mr. Praveen Jain and Mr. Vinay Jain, who had made statements on 19th July 2006 for withdrawal of the instant suit.
The application is allowed.
CS(OS) No. 714/1982
This suit has to go for final arguments. List this suit for final arguments in the category of ''Finals'' in due course.