1. In this revision petition, which is filed against an order to restore a suit, the question for determination is whether the restoration of the suit could he in respect of defendants who have been exonerated by the plaintiff.
2. The plaintiff, who is the 2nd respondent herein filed a suit for specific performance, basing his claim on an agreement to sell obtained by him from defendants 1 to 4 or in the alternative for return of the price paid; Defendants 5 to 9 who claimed to be entitled to a paramount title, have also been impleaded. A decree has been passed and against it defendants 5 to 9 appealed. In that appeal, A. S. No. 80 of 1952 on the file of the Subordinate Judge, Srikakulam an order remanding the case had been passed. When the suit came on for trial after remand, the plaintiff exonerated defendants 5 to 9.
At the instance of the 1st defendant who remained ex parte this decree was again set aside and the suit was restored not only against defendants 1 to 4 but also against defendants 5 to 9. Against this order passed in C.M.A. 53 of 1954 the present Civil Revision Petition has been filed.
3. On behalf of the petitioners it is contended that since the plaintiff has exonerated these defendants and therefore they were given up from the suit, any restoration of the suit by the learned Subordinate Judge Srikakulam cannot be even in respect of defendants 5 to 9 who have been given up From the suit. It is no doubt true that at the time of the passing of the decree after remand the learned Subordinate Judge, Srikakulam had before him as parties to the suit only defendants 1, to 4 as the rest of the defendants were given up by the plaintiff.
It may be as has been pointed out in Jujishti Panda v. Lakshmana, AIR 1933 Mad 435, that the plaintiff felt unable to prove his case against these defendants or that he did not want them on record any longer, as they are unnecessary parties who claimed only paramount title. In any case, they were given up from the suit being improper parties and therefore there is no gain-saying that the suit proceeded only against defendants 1 to 4 and ended in a decree only against those defendants, as defendants 5 to 9 could not be said to be parties to the suit at the time of the passing of the decree. This position has been succinctly put by the Division Bench in the following passage at page 436;
'It is quite clear that, where parties have been wrongly joined and the suit against them is given up by the plaintiff or upon that ground he exonerates them, or there is finding come to that they have been wrongly joined, then the correct procedure is to strike out their names as having been improperly impleaded. On the exoneration or the striking out of the names of persons on the ground of misjoinder they ceased to be parties to the suit.'
The learned Judges also rely on an earlier Full Bench decision in Abdul Sac v. Sundara Mudaliar, AIR 1930 Mad 817 : ILR 54 Mad 81 (FB), and sum up the position by stating that a decree passed after the exoneration of some of the defendants should be taken as having treated these defendants as persons who had been dismissed from the suit and not as persons against whom the suit has been dismissed and that from the time of their dismissal they cease to be parties to the suit, because they had been wrongly joined.
Any restoration therefore of a suit against persons who have been given up or exonerated from the suit would be, in my opinion, without jurisdiction, for an order in such circumstances where the restoration is under Order IX, Rule 13, Civil Procedure Code cannot be taken in any sense as approximating or equivalent to one under Order 1 Rule 10, Civil Procedure Code.
4. On behalf of the respondents it is argued that Order IX, Rule 13 C. P. C. enables a suit to be restored and therefore it is the entire suit as originally filed and the subsequent exoneration of some defendants cannot be taken account of. But if it is only remembered that the suit as decreed with the parties on record that is sought to be restored under Order IX, Rule 13, C.P.C., the argument becomes untenable.
Then, relying upon Order XLI, Rule 4, C. P. C. yet another contention on behalf of the respondents that in allowing an appeal it could be even against defendants or plaintiffs who are not parties to the appeal has been urged and aid is sought for this proposition stating that in the case of a remand also those principles are equally applicable. To my mind this is fallacious; for Rule 4 of Order XLI, C. P. C. is inapplicable to cases falling under Order IX, Rule 13 C. P. C., nor can it be said that reasons could be found on this analogy.
Further, the reason of Rule 4 of Order XLI is that the decree which is sought to be reversed in appeal against all parties (including those not on record in appeal) should have proceeded on a ground common to all the plaintiffs or all the defendants; but that cannot be said the case here, when especially certain defendants are exonerated and they are no longer in the eye of law, parties to the suit at the time of the passing of the decree against which the appeal is preferred.
The learned advocate for the respondents has also sought to rely upon the pronouncement in Chockalingam v. Seethai Ache, AIR 1927 PC 252. There the Judicial Committee was concerned with the addition of a party who was a defendant against whom the suit was dismissed and who was not made a party to the appeal. All that their Lordships of the Privy Council have been enunciating is that in such cases a defendant against whom a suit has been dismissed and as against whom the right of appeal has become barred, cannot be deemed to be interested in the result of the appeal filed by the plaintiff against the other defendants.
It is for the plaintiff appellant who applies to the Court to exercise its powers to show what is the nature of the interest of such defendant. Even according to the ratio of that decision it cannot be said that they were allowing the prayer of the defendant to bring on record without knowing what interest that defendant had in that appeal. Yet another decision reported in Bhura Mal v. Har Kishan Das, ILR 24 All 383 (FB), was relied on. The Full Bench was only considering a case of restoration of a suit against one Bhura Mal who was not made a party to the appeal.
But it is clearly not a case where that Bhura Mal was exonerated as given up and was not a party to the suit when the decree was passed. A faint plea on the ground that the restoration of the suit even against defendants 5 to 9 is necessary to avoid the possibility of conflicting decisions has been made by the learned counsel for the respondents. But it lacks substance inasmuch as no question of conflicting decisions will arise in respect of parties who were given up and against whom there can be no decision at all.
5. Viewed from any angle and having regard to the authorities and the principle which ought to govern cases of restoration of suits it is not possible to hold that suits could be restored against parties who are given up or exonerated. Therefore this revision petition is allowed with costs. The result is that the restoration of the suit will only be as against defendants 1 to 4.