RAJENDRA PRASAD GUPTA Vs. KM PURRIMA SHARMA

JUDGEMENT

(1.) The present revision is directed against the order dated February 19,2001 passed by the Second Additional District Judge (Senior Division), Muzaffarnagar in Misc. Case No.21 of 1999 (O.S. No.337 of 1994, Smt. Sarla Sharma Vs. Ganga Prasad) whereby the court below has allowed the application 3 Ka and restored the suit to its original number after recalling the order dated 25th of August, 1994. The original suit no. 337 of 1994 was instituted for permanent injunction and cancellation of sale deed dated 24th of August, 1994 on behalf of two minors and their mother through Smt. Sarla Sharma (mother) who died during the pendency of the suit and in her place Om Prakash Sharma was allowed to act as next friend of the minors. The said suit was decreed exparte on March 21,1998. This ex-parte decree was set aside. Subsequently, an application was filed by Shri Ashok Kumar, Advocate, on behalf of the plaintiff minors that he does not want to continue with the suit and the suit maybe dismissed accordingly. On the application of Shri Ashok Kumar, Advocate, filed on 20th of August, 1998, the suit was dismissed accordingly. Thereafter, an application purporting to be under section 151 C.P.C. was filed through one Janeshwar Prasad Gautam as next friend of minors for the recall of the order dated 25th of August, 1998 passed in the O.S No. 337 of 1995 and to restore the suit to its original number on number of grounds including that while passing the order dated 25th of August, 1998 the court overlooked the provisions of Order 23 Rules 1 C.P.C. which has vitiated the order dated 25th of August, 1998. It was also stated therein that the provisions of Order 32 Rule 1 to 14 are applicable and if there was any compromise on behalf of the minor, the compromise application should have been filed with the leave of the court and in absence of terms of compromise before the court, the order dated 25th of August, 1998 is illegal and contrary to law. In para 15 of the said application it was stated that Dr. Janeshwar Prasad Gautam is taking care of minors and has no interest adverse to the interest of minors and he is looking after them and is entitled to acts their next friend as he is maternal uncle of the father of the minors.

(2.) The aforesaid application was opposed by filing objections by the present applicant on the allegation that one of the minors namely Ravi Kant Sharma has become major and he has not come forward for recalling the order dated 25th of August, 1998, dismissing the suit..The statement of Sri Ashok Kumar, Advocate, was recorded while passing the order dt. 25th of August, 1998 and the court rightly dismissed the suit for want of prosecution by the order dt.25th of August, 1998.

(3.) The trial court by the order under revision recalled the order dt. 25th of August. 1998 and restored the suit to its original number on the findings that Shri Ashok Kumar advocate failed to watch the interest of the minors and the mandatory provisions of Order 23 and Order 34 C.P.C. were not followed by the court while passing the order dt. 25th of August, 1998 and that the order dt. 25th of August, 1998 being in the teeth of the mandatory provisions of Order 23 and Order 32, the order dt.25th of August, 1998 being contrary to law, cannot be allowed to stand. It also rejected the objection by the present applicant that the application is barred by time onthe ground that no period of limitation for filing an application under Section 151 C.P.C. is prescribed and the order should be passed after affording opportunity of hearing to both the parties of a matter, feeling aggrieved with the aforesaid order, the present revision has been filed by the defendant of the aforesaid suit.