LAXMINARAYAN Vs. JANKIBAI

JUDGEMENT

(1.) This Revision under Sec. 115 of the CPC has been preferred by the plaintiffs being aggrieved by the order dtd. 6/7/2023 passed in RCS No.49-A/2019 by the Civil Judge, Junior Division, Dewas whereby their application under Order 23 Rule 1 of the CPC for withdrawal of the suit with liberty to institute a fresh suit has been rejected.

(2.) The facts in brief are that on 20/3/2019 the plaintiffs instituted an action for declaration of their title to the suit land and for permanent injunction. Summons of the suit were issued to the defendants and defendants 1 to 3 were purportedly served by way of publication in a daily newspaper. On 19/9/2022, at the time of recording of plaintiff's ex parte evidence, Smt. Abhaya Bai @ Kalka, legal representative of deceased defendant No.2 Krishnarao, filed an application for dismissal of the suit on the ground that the same has been instituted against dead persons. By order dtd. 15/12/2022 the application was rejected by the trial Court holding that Smt. Abhaya Bai is not a party to the suit hence has no right to file the application.

(3.) On 8/5/2023, the plaintiffs filed an application under Order 23 Rule 1(3) of the CPC for withdrawal of the suit with liberty to institute a fresh suit in respect of the subject matter of the suit submitting that since the same has been instituted against dead persons, it is a nullity and the defect goes to the root of the matter hence they deserve permission to withdraw the same. By the impugned order the application has been rejected by the trial Court observing that defendants 1 to 3 had expired prior to filing of the suit itself hence their legal representatives cannot be brought on record. Since the suit was filed against dead persons, the same does not fall within the category of a formal defect. In consequence the application filed by the plaintiffs has been rejected.