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2009 DIGILAW 1011 (PNJ)

Gian Singh v. Jagtar Singh

2009-05-26

S.D.ANAND

body2009
JUDGMENT S.D. Anand, J.:- The following facts are apparent from the record and are, even otherwise, beyond the pale of controversy before this Court. 2. The plaintiff-respondent, an NRI had filed a suit for a declaration before the learned Trial Court. During the trial, he had to go overseas and he executed a special power of attorney (Annexure P-4) in favour of one Hari Parkash Huria who, on 12.2.2002, withdrew the suit by making the following statement:- “I am general attorney of Jagtar Singh plaintiff. I have brought the original power of attorney. The copy is Ex.P1. The suit property was earlier joint with brother. Later on partition was effected orally. Confirmation was executed regarding the partition vide agreement dated 14.10.82, which was executed between Milkha Singh, Gurdial Singh, Swaran Kaur, attested by the notary, which is Ex.P2. This partition was also confirmed by Milkha Singh, vide affidavit dated 13.8.93 which is Ex.P3. The suit property fell to the share of Gurdial Singh and he became absolute owner and he rightly sold the same to defendant No.5 Jatinder Kaur through his attorney. After the sale, Jatinder Kaur became absolute owner. The affidavit of Jagtar Singh confirming partition is Ex.P4. After the sale, Jatinder Kaur became absolute owner of the suit property in possession and has got every right to claim and receive rent from the date of sale in our favour. Earlier this factum of partition was not in the knowledge at the time of filing the suit and now it is confirmed by the parties to me. I have no objection if the mutation is entered in favour of Jatinder Kaur and I don’t want to proceed with the case. The same be dismissed as withdrawn.” 3. The withdrawal of the suit was allowed by the learned Trial Court, vide order dated 12.2.2002 (AnnexureP-7) which, too, is reproduced as under:- “Today, Sh. Anil Kumar, Adv. filed power of attorney on behalf of the plaintiff and attorney of plaintiff Sh. The same be dismissed as withdrawn.” 3. The withdrawal of the suit was allowed by the learned Trial Court, vide order dated 12.2.2002 (AnnexureP-7) which, too, is reproduced as under:- “Today, Sh. Anil Kumar, Adv. filed power of attorney on behalf of the plaintiff and attorney of plaintiff Sh. Hari Parkash S/o Lekh Raj made a statement in the court that he is a general power of attorney of the plaintiff Jagtar Singh and proved the copy of the same as Ex.P1 and he further made a statement that parties have effected a compromise and he has no objection if the mutation is entered in favour of Jatinder Kaur and further stated tht he don’t want to proceed with the present suit and the same may be dismissed as withdrawn. In view of the statement of the attorney of the plaintiff, the present suit is hereby dismissed as withdrawn. File be consigned to record room.” 4. Thereafter, the plaintiff-respondent filed a plea (Annexure P-8) for restoration of the suit on an averment that the special power of attorney given by him in favour of Hari Parkash Huria did not authorise the latter to withdraw the suit. The plea found favour with the learned Trial Court which allowed it, vide impugned order dated 28.2.2008 (Annexure P-1). 5. The learned counsel, appearing on behalf of the petitioners, argues that the impugned order deserves to be invalidated in view of the fact that the suit had been withdrawn by a newly engaged learned counsel who was fully authorised to withdraw the suit. 6. It would be apparent, from a perusal of the order dated 12.2.2002, that it was the attorney of the plaintiff-respondent who had made a statement for the leave of the Court to get the suit dismissed as withdrawn. Though the newly engaged learned counsel also filed a power of attorney on behalf of the plaintiff-respondent, he is not indicated to have made any statement withdrawing the suit nor did he even countersign the above quoted statement made by special attorney. A perusal of the special power of attorney (Annexure P-4) would leave no manner of doubt that contents thereof did not authorise the special attorney to withdrawn the suit. A perusal of the special power of attorney (Annexure P-4) would leave no manner of doubt that contents thereof did not authorise the special attorney to withdrawn the suit. Since the newly engaged learned counsel did not make a statement before the learned Trial Court and he even did not countersign the statement made by the attorney, either it cannot be said that the withdrawal of the suit had been ordered on the basis of a statement made by a newly engaged learned counsel. On the other hand, the special power of attorney (Annexure P-4) did not authorise the attorney to withdrawn the suit. In that view of things, the learned Trial Court was within its jurisdiction in ordering the restoration of the cause concerned. 7. The learned counsel appearing on behalf of the petitioners, argues that the presence of learned counsel at the time of dismissal of the suit as withdrawn is a clear indication to the effect that the learned counsel agreed with the special attorney in representing the withdrawal of the suit. 8. The plea is neither here nor there. As already noticed, the newly engaged counsel did not make any statement whatsoever before the Court and he refrained from signing the statement made by the plaintiff-respondent before the Trial Court. The mere presence of the learned counsel would not, ipso facto, enable this Court to treat him as a signatory to that statement or even a consenting party thereto. In view, thus, of the foregoing discussion, it is apparent that the petition is devoid of merit and is ordered to be dismissed. ----------------