KUMARAM KAMESAM BHUKTA DIED Vs. KUMARAM LAKSHMINARASAMA

JUDGEMENT

(1.) In this revision petition, which is filed against an order to restore a suit, the question for determination is whether the restoration of the suit could he in respect of defendants who have been exonerated by the plaintiff.

(2.) The plaintiff, who is the 2nd respondent herein filed a suit for specific performance, basing his claim on an agreement to sell obtained by him from defendants 1 to 4 or in the alternative for return of the price paid; Defendants 5 to 9 who claimed to be entitled to a paramount title, have also been impleaded. A decree has been passed and against it defendants 5 to 9 appealed. In that appeal, A. S. No. 80 of 1952 on the file of the Subordinate Judge, Srikakulam an order remanding the case had been passed. When the suit came on for trial after remand, the plaintiff exonerated defendants 5 to 9. At the instance of the 1st defendant who remained ex parte this decree was again set aside and the suit was restored not only against defendants 1 to 4 but also against defendants 5 to 9. Against this order passed in C.M.A. 53 of 1954 the present Civil Revision Petition has been filed.

(3.) On behalf of the petitioners it is contended that since the plaintiff has exonerated these defendants and therefore they were given up from the suit, any restoration of the suit by the learned Subordinate Judge Srikakulam cannot be even in respect of defendants 5 to 9 who have been given up From the suit. It is no doubt true that at the time of the passing of the decree after remand the learned Subordinate Judge, Srikakulam had before him as parties to the suit only defendants 1, to 4 as the rest of the defendants were given up by the plaintiff. It may be as has been pointed out in Jujishti Panda v. Lakshmana, AIR 1933 Mad 435, that the plaintiff felt unable to prove his case against these defendants or that he did not want them on record any longer, as they are unnecessary parties who claimed only paramount title. In any case, they were given up from the suit being improper parties and therefore there is no gain-saying that the suit proceeded only against defendants 1 to 4 and ended in a decree only against those defendants, as defendants 5 to 9 could not be said to be parties to the suit at the time of the passing of the decree. This position has been succinctly put by the Division Bench in the following passage at page 436;