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2006 DIGILAW 312 (MAD)

A. Panneerselvam v. Sowmini & Others

2006-02-10

A.P.SHAH, N.PAUL VASANTHAKUMAR

body2006
Judgment :- (This O.S.Appeal has been filed under Order XXXVI Rule 11 of O.S.Rules read with Clause 15 of Letters Patent against the order dated 8.4.2004 of the learned single Judge in Application No.777 of 2004 in C.S.No.124 of 1995.) This O.S.Appeal arises against the order of the learned single Judge in Application No.777 of 2004 in C.S.No.124 of 1995 dated 8.4.2004. Application No.777 of 2004 was filed seeking reopening of the main suit C.S.No.124 of 1995, which was dismissed as withdrawn on 31.10.2003. 2. The brief facts that are necessary for disposal of this O.S.Appeal are as follows, On 31.10.2003, the learned counsel on record for the appellant/plaintiff sought permission to withdraw the suit stating that the matter was settled out of Court. A memo was filed to the effect that the matter has been settled out of Court and hence the petitioner does not want to proceed further with the matter. Based on the said memo, the suit was dismissed on 31.10.2003. Application No.777 of 2004 was filed by the plaintiff/appellant on 16.2.2004 and prior to that Application No.5213 of 2003 was filed on 1.12.2003 for impleading the advocate on record of the plaintiff as party respondent No.5. The said application came to be dismissed as not pressed taking note of the consent for change of vakalat given by the learned counsel in the open Court. 3. The learned single Judge, after elaborately going into the matter, found the following circumstances for dismissing the application. The said application came to be dismissed as not pressed taking note of the consent for change of vakalat given by the learned counsel in the open Court. 3. The learned single Judge, after elaborately going into the matter, found the following circumstances for dismissing the application. "(a) Mr.Adi Narayana Rao meeting the plaintiff in the prison on 30.10.2003; (b) taking his signature in the quash petition in the prison itself attested by the jailor; (c) Mr.Adi Narayana Rao claiming that the plaintiff gave instructions in the presence of his wife, to Mr.Adi Narayana Rao to withdraw the suit and to receive the drafts from the defendants, to be handed over to the plaintiff's wife; (d) the plaintiff filing a memo on 31.10.2003 for withdrawing the suit; (e) the purchase of two demand drafts, each dated 31.10.2003 in the name of the plaintiff, though by a person not a party to the suit; (f) On 01.11.2003 the two demand drafts being handed over to the plaintiffs wife under acknowledgement as referred to earlier (document produced by the plaintiff and the document produced by Mr.Adi Narayana Rao); (g) the plaintiff coming out of the prison on 17.11.2003 and knowing about the dismissal of the suit as well as receipt of the two demand drafts by his wife; (h) failure to disclose about the dismissal of the suit and the receipt of the two demand drafts in the affidavit filed in support of A.No.5213/2003; (i) failure to disclosed the receipt of the two demand drafts in the affidavit filed in support of A.No.777/2004; (j) not taking any steps at all to have the demand drafts sent back to any of the three parties namely, Mr.Adi Narayana Rao/defendants/purchaser of the demand drafts; and (k) lastly the plaintiff's wife not establishing, by any acceptable materials, that she took steps to send the demand drafts back to Mr.Adi Narayana Rao." Learned Judge also found that the appellant orally instructed the then counsel, when he met him in the prison on 30.10.2003 to withdraw the suit on receiving the demand draft and hand over the same to his wife. Based on the instructions given by the plaintiff/appellant, the suit was withdrawn by filing the above referred memo. The learned single Judge also took note of the conduct of the plaintiff/appellant that he has not chosen to let in any oral evidence in support of his case. Based on the instructions given by the plaintiff/appellant, the suit was withdrawn by filing the above referred memo. The learned single Judge also took note of the conduct of the plaintiff/appellant that he has not chosen to let in any oral evidence in support of his case. 4. We do not find any illegality or impropriety in the order of the learned single Judge in dismissing the application, particularly on the specific grounds that two demand drafts dated 1.11.2003 were handed over to the plaintiff's wife under acknowledgement and that the plaintiff is well aware of the dismissal of the suit. The conduct of the plaintiff/appellant in not taking any steps to send back the demand drafts to any of the three parties clearly establishes the irrebuttable presumption that the plaintiff/appellant instructed his counsel on record to withdraw the suit when he met him in the prison on 30.10.2003, based on which the counsel filed the memo on 31.10.2003 and the suit was dismissed by the learned single Judge as settled out of the Court. 5. There is no ground to set aside the order of the learned single Judge in Application No.777 of 2004 and consequently, the O.S. Appeal is dismissed in limine. Connected CMPs are also dismissed.