A.K. Banerji, J. - (1.) BY means of the aforesaid application A -12, the Plaintiff -Appellants have sought permission to withdraw their Suit No. 127 of 1994 with permission to file a fresh suit, if occasion arises.
(2.) BRIEFLY stated, the relevant facts are that the Plaintiff Sri Ram Chandra Mission through its President Sri P. Rajagopalachari and four others filed the Original Suit No. 127 of 1994 in the court of the Civil Judge, Shahjahanpur, inter alia for permanent injunction against the Defendant Nos. 1 to 8 restraining them and their representative, agents and servants from holding any function in the name of the President or the other office bearers of Sri Ram Chandra Mission, Shahjahanpur and further restraining the Defendants from collecting any money in the name of Sri Ram Chandra Mission, Shahjahanpur and from operating or opening any bank account in the name of the said mission. The said suit has subsequently been transferred to this Court and is pending adjudication. Defendant No. 1 has filed a written statement in the said suit and issued have been framed therein. At this stage and before evidence could be recorded, the present application has been filed under Order XXIII, Rule 1, C.P.C., on behalf of the Plaintiffs through their counsel for withdrawing of the said suit with permission to file a fresh suit if occasion arises. The prayer made in this application is being opposed by Sri U. C. Saxena and Defendant No. 1 who has filed a counter -affidavit to the same. I have heard Sri Ajit Kumar, for the Plaintiffs and Sri. B. B. Paul, for the Defendant No. 1. Learned Counsel for the Plaintiff -applicants has placed before me the affidavit filed in support of the withdrawal application and has mainly contended, that in view of certain subsequent developments which has taken place particularly the judgment of this Court dated 16.10.1995 in Testamentary Suit No. 1 of 1994 and a fresh Suit No. 697 of 1995 filed by the Defendant No. 1 in the court of Civil Judge, Allahabad and the intention of the Defendant to involve the Plaintiffs in multifarious litigation, present application for withdrawal of the suit with the permission to institute a fresh suit if occasion arises has become necessary. That apart Suit No. 127 of 1994 related to the function to be held at Shahjahanpur between 25.4.1995 to 1.5.1995 which the Defendant No. 1 was trying to hold illegally and the said period having expired, the suit has since become infructuous and against some of the Defendants cause does not subsist any more. Besides certain orders have been passed by the Registrar of Societies on 5.4.1994 and 29.9.1994 in favour of the Plaintiffs and though the Registrar of Societies have been arrayed as Defendant No. 9 notice under Section 80 of C.P.C., have not been given to the said Defendant, which might be a formal defect for the said reason also and to avoid multiplicity of proceedings and conflicting judgments withdrawal of the suit permission to institute another suit if the occasion arises has become necessary.
(3.) ON the other, hand the learned Counsel for the Defendant No, 1 has mainly contended that the application for withdrawal does not disclose on behalf of which of the Plaintiff the same is being filed. Secondly the Original Suit No. 127 of 1994 was filed illegally for mala fide reasons by the alleged power of attorney holder of P. Rajagopalachari without obtaining permission from the Defendant No. 1 who is the President of Sri Ram Chandra Mission, consequently, the said suit deserves to be dismissed. Thirdly no notice under Section 80, C.P.C., was necessary to Defendant No. 9 hence the suit does not suffer from any formal defect. Fourthly, the decision of this Court dated 16.10.1995 in Testamentary Suit No. 1 of 1994 is under challenge in Special Appeal No. 829 of 1995 and, therefore, there does not exist any sufficient cause to permit the Plaintiffs liberty to file a fresh suit. The application. therefore, deserves to be dismissed.;