Research › Search › Judgment

Rajasthan High Court · body

2005 DIGILAW 3145 (RAJ)

Om Prakash v. Daya Ram

2005-11-28

VINEET KOTHARI

body2005
Judgment Dr. Vineet Kothari, J.-Heard learned Counsel for the parties. 2. This revision petition is directed against the order dated 25.09.1999 passed by the Court below deciding Civil Misc. Case No. 19/99 "Om Prakash vs. Dayaram" by which the alleged compromise between the parties dated 27.07.1999 was recalled and the Suit No. 65/96 was restored by the Court. 3. Having perused the impugned order and record of the case, I find no justification to interfere in the impugned order of the Court below by which the Court has restored the suit. 4. From the impugned order, it appears that the next date in the suit was fixed on 31.07.1999 but on an application allegedly signed by the defendant Dayaram, which was filed before the Court alongwith a newly appointed lawyer on his behalf Shri Mahendra Pithani when, the regular Counsel appearing on behalf of the defendant, who is said to be 85 years of age at that time were not present in the Court on account of same cremation namely, Shri Jasraj Kothari and Shri Mahaveer Tater had gone to attend the same and their Junior Shri Chelaram was also not present in the Court and alongwith the said newly appointed lawyer, the said application alongwith, the alleged compromise was filed before the Court and the Court accordingly decreed the suit in favour of the plaintiff . 5. From the impugned order as well as from the application filed under Order 23 Rule 3, CPC, it also appears that on 25.07.1999, on account of engagement of daughter of plaintiff Om Prakash, who is son of the defendant Dayaram, the said old man went to the residence of his son and then, he was taken to the Court on 27.07.1999 and in the circumstances narrated above, the alleged compromise was filed before the Court and the suit was decreed. In the application under Order 23 Rule 3, CPC supported by an affidavit, the defendant Dayaram, who unfortunately has since expired on 26.05.2002 has stated that he was mis-led by his son on that day by saying that in view of the compromise, he is withdrawing the suit whereas, in the alleged compromise, the averment was to the effect that on his behalf that on account of compromise, the suit for injunction be decreed as prayed. In the application, it was also stated that the said defendant Dayaram was 85 years of age at that time and had very weak eye-sight and weak hearing capacity also. In these circumstances, the said application under Order 23 Rule 3, CPC was filed by him when he was alive praying therein that the said decree obtained by fraud may be set aside and the suit may be restored. 6. A reply to the said application was filed on behalf of the plaintiff -respondent denying these allegations. 7. The Court below however, found that sufficient grounds were made out for setting aside that decree and restoring the suit in question. 8. From the circumstances narrated above, it clearly appears that plaintiff Om Prakash, the son of Dayaram took advantage of the old age, weak eye-sight and weak hearing capacity of his father and mis-leading him to believe that the suit was being withdrawn on that day, took him to the Court and on the contrary, got the suit decreed in his favour. 9. The Court below by restoring that suit has only done what was just and proper in the facts and circumstances of the case and, therefore, no interference is required in the present revision petition. 10. Learned Counsel for the revisionist has relied upon a few Judgment . One of them being given in Jagdish vs. Smt. Premlata Rai, reported in AIR 1990 Raj. p. 87, Smt. Sudha Devi vs. M. P. Narayanan and Ors., reported in AIR 1988 SC p. 1381 and 2002 (5) CCC p. 297, in support of his submission that affidavit as such cannot be used as an evidence to prove a particular fact and therefore, the decree based solely and wholly on affidavits filed before the Court cannot be treated as evidence. 11. First of all, this ratio is of no support to the petitioner because present was a case of application and net of a decree passed merely on affidavit. Secondly, to the application filed before the Court below, the present petitioner had an opportunity to contest the said application which he availed by filing a reply thereto. In the said reply or otherwise, it does not appear anywhere that the said plaintiff sought any opportunity from the Court to cross-examine the applicant Shri Dayaram, who was alive at that time. Now unfortunately, he is no more. In the said reply or otherwise, it does not appear anywhere that the said plaintiff sought any opportunity from the Court to cross-examine the applicant Shri Dayaram, who was alive at that time. Now unfortunately, he is no more. In view of this, the case law cited by the learned Counsel for the petitioner is of no avail to him. 12. In view of the aforesaid, I am not inclined to interfere in the impugned order. There is no force in the revision petition and the same is accordingly dismissed.