1. In this case, some fourteen plaintiffs brought a suit in May 1918 for the purpose of setting aside the preliminary and final decrees made in 1917 in a partition suit and for certain incidental reliefs. Some of the plaintiffs, namely, plaintiff No. 2 and plaintiffs Nos. 5 to 9 went out of the case by compromise before the matters with which we are now concerned. There were a great number of defendants, I understand about 160 or more of whom the present petitioners who appear to be defendants Nos. 43 to 49 were the contesting defendants. After many days, on the 21st June 1923, the case came on for hearing and an application for. adjournment was made by certain of the plaintiffs and it was dismissed. Thereupon, the suit was dismissed for default in the presence of the present petitioners-defendants Nos. 43 to 49. Shortly after, wards, an application for the restoration of the suit was made by three of the plaintiffs-plaintiffs Nos. 1, 3 and 4 - against the present petitioners. What happened first was that the Subordinate Judge refused to restore the suit on the merits. The learned Additional District Judge on appeal took a different view of the merits and he has directed the restoration of the suit as between the plaintiffs Nos. 1, 3 and 4 on the one hand and, on the other hand, the present petitioners together with these other defendants who did not appear on the date of the hearing.
2. The present petitioners apply in revision and their first point is that so far as regards the defendant, other than themselves, the order of dismissal was an order made under Rule 3 and the order on the application for restoration was made under Rule 4 of Order 9, C.P.C. From an order refusing restoration under Rule 4 of Order 9 C.P.C. there was no appeal to the District Judge. As matter of fact, these other defendants were not made respondents to the appeal by the three plaintiffs who succeeded in obtaining an order in their favour. Accordingly, it seems pretty clear that there is no order as regards these other defendants not the present petitioners before us. There is no order which they are obliged to regard as having been made either in their presence or even with any jurisdiction. If the order so far as those other defendants are concerned could in any way be regarded as made under Rule 9 of Order IX, then again the order would be without jurisdiction because of the second clause of rule which requires notice of the application to be served upon them. We are, therefore, in the position that, as regards these defendants, we are bound to take notice of the fact that they are not now competently brought upon the record at all and the question is whether at the instance of the present petitioners we are obliged to take notice in revision of that circumstance. The present petitioners say that such a state of things should not continue. They are being made to defend the suit with a great many other co-defendants. In the absence of some of those co-defendants, ,the suit against them may not be competent and, if those co-defendants are not really competently on the record at all, questions may well arise in that event between the present petitioners and those other persons - their co-defendants. It seems highly dangerous, therefore, for this Court to ignore the circumstance that has been brought to our notice and to let such state of things to continue.
3. Another objection is made by the present petitioners. They say that it was wrong to direct that the suit should be restored leaving as plaintiffs only some of the plaintiffs, that is to say, plaintiffs Nos. 1, 3 and 4. It would certainly appear that under Order 9, C.P.C. an application for restoration should be made so as to bring the suit back, as regards parties, to the exact position in which it was when the suit was dismissed. After that, it is competent no doubt for a particular plaintiff or plaintiffs to apply to be dismissed from the suit; or to withdraw the suit and such an application can be made. So far as the present petitioners are concerned, it does not seem to me that there is anything of substance further in the objections which have been urged. I certainly think that this Court at their instance should interfere in revision and set aside the order of the lower appellate Court, first of all, in so far as it purports to put the non-appearing co-defendants back upon the record.
4. As regards the question whether the suit should be allowed to go on as against the present petitioners alone and on the part of the plaintiffs Nos. 1,3 and 4 alone, it does not seem to me necessary to interfere with what the Court of appeal below has done except to this extent: there is no justification for letting out any plaintiff until, first of all, the whole of the costs of present petitioners up to the date of the dismissal of the suit have been paid to them by those plaintiffs who propose to continue the suit. Secondly, if the suit is to proceed by those plaintiffs only against the present petitioners only, it must be distinctly on the terms that any objections arising out of that new state of things must be capable of being raised by the present petitioner by an additional written statement, if they so desire and must be dealt with in the course of the case. It seems to me that if we make these orders on the present application, we shall interfere with this matter in revision only to the minimum extent which is necessary to put this litigation on a competent footing, if it further continues. On these terms, I propose that the Rule should be made absolute with costs - hearing fee two gold mohurs.
M.N. Mukerjee, J.
5. I agree.