CR - 241/2007 -Mandir Math Mahadev Ji Vs. Roshan Singh & Ors. Judgment dt.12.11.08 1/3 S.B. CIVIL REVISION REVISION NO.241/2007 Mandir Math Mahadev Ji Vs. Roshan Singh & Ors. Date of order : 12th November, 2008 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr. C.R. Jhakar for the petitioner. Mr. Shambhoo Singh for the respondents. --------- 1. This revision petition has been filed against the order dated 18.9.2007 whereby the learned trial court rejected the application of the petitioner under Order 32 Rule 7 and 8 read with Section 151 C.P.C. for substitution as next friend and to recall the order of dismissal of the suit as withdrawing on account of compromise under Order 23 Rule 1 C.P.C. 2. Learned counsel for the petitioner Mr. C.R. Jhakar submits that the application filed by earlier plaintiff next friend of Deity Mr. Puran Nath was not supported by the affidavit nor the application filed before the learned trial court on 6.9.2007 makes any averment that such withdrawal of suit filed against the defendant Roshan Singh would be in the interest of Deity, perpetual minor. He, therefore, submits that in collusive manner, the plaintiff Puran Nath had withdrawn the suit filed against the defendant on application on which the signatures of the said plaintiff Puran Nath was identified by CR - 241/2007 -Mandir Math Mahadev Ji Vs. Roshan Singh & Ors. Judgment dt.12.11.08 2/3 an Advocate, who was not even engaged originally and who filed the suit. He, therefore, submits that the learned trial court could not reject the application filed by the present petitioner seeking to pursue the suit in the interest of Deity. 3. These submissions are opposed by the learned counsel for the respondents, who submits that the application under Order 32 Rule 7 would lie only if some proceedings are pending before the learned trial court, therefore, in view of this, since no proceedings were pending, the trial court was justified in rejecting the application of the present petitioner by the impugned order dated 18.9.2007. 4. Having heard learned counsels and upon perusal of the provisions of the Order 32 Rule 7 and 8 C.P.C., it appears that the court below has erred in rejecting the application of the present petitioner. The withdrawal of the suit has to be in the interest of Deity and provisions of order 32 Rule 7 C.P.C. clearly stipulate that the agreement or compromise on behalf of the minor with reference to the suit, with the leave of the Court, can be permitted only if there is a clear stipulation in application duly supported by the affidavit that such withdrawal is in the interest of such minor and in the absence of application dated 6.9.2007 being not supported by any affidavit nor there being any stipulation in the said application itself that such withdrawal of suit was in the interest of Deity, the Court below erred CR - 241/2007 -Mandir Math Mahadev Ji Vs. Roshan Singh & Ors. Judgment dt.12.11.08 3/3 in deciding the suit on the said compromise under Order 23 Rule 1 C.P.C. and the application filed by the present petitioner to plead and pursue the said case as a next friend could not have been rejected by the learned trial court. 5. Consequently, this revision petition is allowed and the impugned order dated 18.9.2007 is set aside and the learned trial court shall try the suit allowing the petitioner to pursue the said suit as next friend of Deity. [ DR. VINEET KOTHARI ], J. item No.28 babulal/-