GAUTAM DEV SHOURIE Vs. VIJAY SHOURIE

JUDGEMENT

(1.) THE present application is filed by the defendants No.4 to 6, sisters of defendant No.1 praying inter alia for their transposition as plaintiffs in view of the demise of the plaintiff No.1 who instituted the present suit. The same was filed by the applicants on 7.4.2005 and notice was issued thereon to the non-applicants on 20.4.2005. Within two weeks thereafter i.e. on 29.4.2005,an application was filed by the original plaintiff under Order 23 Rule 1 CPC, being IA No.3368/2005 praying inter alia for withdrawal of the suit in view of the fact that a compromise was arrived at between the parties. The aforesaid application was allowed, vide order dated 29.4.2005, wherein it was recorded that the defendants No.1,2 and 7 have no objection to the request made by the plaintiff for withdrawal of the suit. It is pertinent to note that the aforesaid application was duly supported by the affidavits of the plaintiff and the defendant No.1. Accordingly, the application was allowed and the suit was dismissed as withdrawn.

(2.) ON the same date, the present application filed by the applicants/defendants No.4 to 6, was disposed of as having been rendered in fructuous. It is pertinent to note that none was present on behalf of the applicants on the aforesaid date. Thereafter, the applicants filed applications for recall of the order dated 29.4.2005 and for hearing on merits of the present application, being IAs No.7385-86/2005. The aforesaid applications were allowed, vide order dated 14.3.2008 and as a result, the suit as well as the present application, apart from two other applications, were revived.

(3.) COUNSEL for the non-applicants/defendants No.1,2 and 7 does not dispute the position that the present suit is one for partition. He further submits that in view of the fact that prior to filing of the present application, the applicants had filed their affidavits dated 31.3.2004 before the Land Revenue Authorities giving up/releasing their shares in favour of his clients, the present application is not maintainable.