1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.