An application for review of an order of dismissal of a suit as withdrawn is maintainable where one of the plaintiffs did not consent to the withdrawal and the court was misled by a misrepresentation made by another plaintiff.

V. P Bhatnagar, J.—This application has been moved under the provisions of Order XLVII, Rule 1 of the Code of Civil Procedure for review of the order made by this Court on 27-11-1989 in Civil Suit No. 7 of 1989 whereby the suit was dismissed as withdrawn This order was made on an application moved by the learned Counsel for the plaintiffs including the applicant but it is not disputed that the application had infact been signed by two of the three plaintiffs and not by the plaintiff-applicant.

2. The main ground taken up by the applicant seeking review of the order dated 27-11-3989 is that he never consented to the suit being withdrawn and that his co-plaintiff Yash Pal Sood mis-represented to their Counsel in the matter. In support of his aforesaid averment he has attached his own affidavit as also that of Shri Kapil Dev Sood, Advocate

3. The respondents have contested the application on several grounds It has been inter alia alleged that there was intentional abandonment of the claim by all the plaintiffs and that the application now being made is a result of afterthought and is actuated by mala fide. The maintainability of an application for review, in the facts and circumstances of this case, has also been challenged.

4. The applicant, as stated above, has relied upon the affidavit of Shri Kapil Dev Sood, Advocate, in addition to his own affidavit. The respondents were allowed to file counter-affidavits, if any, but they did not avail of this opportunity. I have once again enquired from learned Counsel of both the parties if they would like to file any other affidavit(s) in support of their respective claims. Both sides have stated that the application may be decided on the basis of the material already on record In order to attract the applicability of Order XLVII, Rule 1 of the Code of Civil Procedure, it has to be shown that the applicant is aggrieved (a) by a decree or order from which an appeal is allowed but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed or (c) by a decision on a reference from a Court of Small Causes. At the very out-set it has been urged by Shri Chhabil Das, learned Counsel for the applicant, that the impugned order partakes the character of "Order from which no appeal is allowed" within the ambit of sub-clause (b) referred to above. In the alternative, it has been urged by him that the provisions of section 151 of the Code of Civil Procedure whereunder the Court has inherent powers to review the order in a fit case can also be invoked.

5. Order’ has been defined under section 2 (14) of the Code of Civil Procedure. It means the formal expression of any decision of a Civil Court which is not a decree. Decree takes its meanings as stated in section 2 (2) of the Code of Civil Procedure. Basically, It has to be the formal expression of an adjudication and should conclusively determine the rights of the parties. It does not require much reasoning to hold that an order of dismissal of the suit being withdrawn made under the provisions of Order XXI11, Rule 1 of the Code of Civil Procedure cannot be regarded as a formal expression of adjudication of the rights of the parties. It falls within the meaning of the term Order as stated in section 2 (14) ibid. The above conclusion is supported by the law laid down in Mathuralal and others v. Chiranji Lal and others, AIR 1962 Raj 109.

6. The main question to be determined in this case is whether an application for review is maintainable on the facts and circumstances of this case. What cannot be disputed on facts is that the application for withdrawal was signed by two plaintiffs and not the third one who is the applicant before this Court and is the aggrieved party- From the contents of the affidavit of Shri Kapil Dev Sood, Advocate, it is manifest that the applicants Counsel assumed his consent in withdrawing the suit on the basis of the representation made by respondent Yash Pal Sood. I have no reason whats