Point of Law: Duty is cast on the Court to see that interest of those on whose behalf suit is permitted to be instituted is safeguarded.

ORDER :

The present civil revision petition under Section 115 of the Code of Civil Procedure (henceforth referred as 'CPC') is filed by the petitioners/original plaintiffs No.5, 7 and 9, aggrieved by the order dated 09.11.2020 passed by the learned Principal Civil Judge and JMFC at Humnabad (for short the 'Trial Court') in O.S.No.17/2019, by which the Trial court dismissed the suit filed under Order I Rule 8 of CPC as withdrawn upon a memo filed by the respondent Nos.1 and 2/original plaintiffs No.6 and 10.

2. The brief facts leading up to filing of the present petition are that the petitioners the respondents No.4 to 10 herein who were the original plaintiffs invoking the provisions of Order I Rule 8 of CPC had filed the above suit in O.S.No.17/2009 against the respondents No.1, 2 and 3 herein who were the defendants in the said suit for relief of declaration to declare that the plaintiffs have got right of way as an easement of necessity on the suit way, which is 15 ft. wide road, passing in between the plot Nos.7 to 10 and 11 to 13 situated in land bearing Survey No.175 of Humnabad town as shown in the suit schedule 'A' property and also for permanent injunction restraining them from causing illegal interference in the suit property and for mandatory injunction to dismantle and remove the illegal construction of function hall on the said property.

3. That an application under Order XXXIX Rule 1 and 2 of CPC filed in the said suit had been allowed by an order dated 08.02.2019. That the respondents No.1 and 2 herein had filed a written statement and issues had also been framed by the Trial Court on 22.08.2019 and the matter was posted for evidence. That when the matters stood thus, the respondents No.8 and 10 herein who were the plaintiffs No.6 and 10 in the said suit in collusion with respondents No.1 and 2 herein who were the defendants No.1 and 2, had filed a memo dated 09.11.2020 stating that the plaintiffs and the defendants had compromised the matter out of the Court and plaintiffs did not want to proceed with the case and as such sought for dismissal of the suit. That the Trial Court by an order dated 09.11.2020 dismissed the suit on the basis of the said memo for withdrawal filed by the respondents No.1 and 2 herein.

4. Thus, aggrieved by the aforesaid order the petitioners are before this Court.

5. Heard Sri. D. P. Ambekar, learned counsel for the petitioners and Sri. Ameet Kumar Deshpande, the learned counsel for the respondents No.1 and 2.

6. The learned counsel for the petitioners reiterating the grounds urged in the petition submits that;

(a) That the suit being one under Order 1 Rule 8 of CPC, the order passed by the Trial Court is in violation of Sub Rule (4) of Rule 8 of Order I of CPC as no notice has been issued to the plaintiffs and all persons so interested as specified in Sub-Rule (2) of Rule 8 of Order I CPC.

(b) That before passing the said order, the Trial Court ought to have substituted any persons having same interest in the suit in view of provisions of Sub Rule (5) of Rule 8 of Order I CPC.

(c) That the Trial Court without exercising the jurisdiction vested in it has committed illegality and jurisdictional error, while dismissing the suit based on the memo.

7. The learned counsel for the respondents opposing the above petition and justifying the impugned order submitted that;

(a) The revision petition, is not maintainable, as the order passed by the Trial Court on the memo, would not fall in the category of "any order if it had been made in favour of the petitioner would have finally disposed of the suit" as contemplated under proviso to Sub-Section (1) of Section 115 of CPC.

(b) That any petition under Section 115 of CPC has to pass the test of proviso to Sub-Section (1) of Section 115 of CPC irrespective of whether the order is final or interim and that the proviso cannot be culled out as a separate clause for 'interim order' or 'case decided', as it includes orders of all nature.

(c) That relying upon the d