B BATTABHIRMAYVA Vs. B GOPALAKRISHNAYYA

JUDGEMENT

(1.) One Bangaru Gopalkrishnaiah filed O.S. No. 57 of 1966 on the file of the Subordinate Judge, Narsapur. That suit was for partition and separate possession of his share of the plaint schedule properties which stood alienated in favour of the 8th defendant under a document dt. 11-7-1978. The consideration under that impugned sale was, received by the 4th defendant. In the suit filed by Bangaru Gopalakrishnaiah, the appellants herein, were added as the defendants 5 to 7 because these appellants-defendants along with the plaintiff were admittedly entitled to equal shares in the suit properties. The defendants 5 to 7 in an effort to promote their interests have supported in their written statement the claim of the plaintiff for partition of suit properties among the various sharers and claimed their share in them and also sought the cancellation of the alienations of the suit properties in favour of the 8th defendant.

(2.) The suit developed teething troubles. The first complication was caused by the 4th defendant filing I.A. No.674/1970 seeking to have the suit claim compromised in terms of an alleged compromise which the defendants 5 to 7 opposed. The proposal of the 4th defendant was, no doubt, in his interests, but not without detriment to the defendants 5 to 7. Added to this complication was the further complication caused by the death of the 8th defendant. The death of the 8th defendant had necessitated bringing on record of his legal representatives. Applications for that purpose were taken out, but not yet ordered. Without adjudicating the above two sets of applications the suit cannot be taken up for trial. For disposing of such interlocutory applications, out system of unit accounting adopted by the High Court to assess the work ability of the lower Courts offers only disincentives to the subordinate Courts. All in all, the suit made no progress. All those miscellaneous applications were being posted from time to time for inquiry. When some of those miscellaneous matters were thus posted on 13-9-1976, the 4th defendant, the maternal grand-father of the present appellants, using his vast experience of court-craft accumulated over the years, had brought the plaintiff into the court even without the knowledge of the plaintiffs lawyer and got a memo filed withdrawing the suit itself. No notice of that withdrawal memo, was given to defendants 5 to 7 nor was the plaintiffs lawyer made aware of it. Indeed the plaintiff's lawyer did neither sign the memo, nor was he present in the Court. Everything was done by the grandfather in utmost secrecy. Secrecy, they say, is the badge of fraud. The lower court ought to have suspected something foul. The lower Court ought not to have passed any orders on such a memo, without notice to the defendants, particularly when the main suit was not formally posted before the court on that day for trial. Ignoring these safety precautions, the lower Court ordered the memo. and dismissed the plaintiff's suit as withdrawn. As a result of the order of dismissal of the suit passed by the Court the right of the defendants 5 to 7 to get themselves transposed as plaintiffs in the suit and continue the same and get their lawful share in the suit property had all been lost. The defendants 5 to 7, had, therefore, filed I.A. No. 736 of 1976 under O.4 R. 9 and O.9 R. 13 CPC to set aside the order of the trial court dt. 13-9-1976 dismissing the suit treating that order as having been passed ex parte. The plaintiff and the 4th defendant filed a counter contesting the above I.A. No. 736 of 1976. The plaintiff and the 4th defendant supported the order of the Court dismissing the suit on the theory that the plaintiff had an undoubted right under O.23 CPC to withdraw his suit and that therefore the order of dismissal passed by the trial court on 13-9-1976 was unimpeachable.. Having been aggrieved by that order of the trial Court dismissing the said I.A. 736 of 1976 the defendants 5 to 7 had filed the present C.M.A. under O.43 R.1 of the Civil P.C. It may be admitted that the application filed by the present appellants-defendants in the court below under O. 9 K. 9 and O. 9 R. 13 read with S. 151 of CPC is not competent, because none of those provisions of Civil P.C. would apply to the facts of this case. O.9 R. 9 CPC applies to a situation where the suit was dismissed by a Court for the reason that the defendant appears and the plaintiff does not appear. That is not the case here Similarly, O. 9, R. 13 C.P.C. deals with a situation where a court makes an ex parte decree against the defendant on the ground that he does not appear. Even that provision does not apply because no decree was passed on 13-9-1976 against the defendants. It follows that O. 43. R.1 CPC which provides for a right of appeal against any order made under O.9 R.9 or O.9 R.13 CPC will have no application to the facts of this case.

(3.) This Civil Miscellaneous Appeal is, therefore not competent. But that is not the end of the matter, as we are of the opinion that the order of the lower court dismissing the plaintiff's suit without notice to the defendants' is one passed without jurisdiction. Accordingly, we treat this Civil Miscellaneous Appeal as a Civil Revision Petition filed under S.115 CPC and proceed to consider the correctness of the order passed by the Court below.