Research › Search › Judgment

Punjab High Court · body

2010 DIGILAW 2965 (PNJ)

Rameshwar Sharma v. Bhagwati

2010-10-29

ALOK SINGH

body2010
JUDGMENT ALOK SINGH, J. -Plaintiff - Petitioner has invoked supervisory jurisdiction of this Court under Article 227 of the Constitution of India, challenging the orders dated 12.1.2004 passed by the Civil Judge, Junior Division, Sonepat, as well as, the order dated 3.10.2008 passed by the Additional District Judge, Sonepat, whereby suit of the plaintiff, on the statement of the counsel for the plaintiff, was permitted to be withdrawn with liberty to file a fresh suit on the same cause of action and thereafter, application for recalling the withdrawal order and the appeal therefrom were dismissed. Brief facts of the present case are that plaintiff -petitioner has filed suit for declaration to the effect that the plaintiff is in actual physical possession and is in cultivation possession over the suit land. The suit was filed in the year 1992. Even after duly served, the defendants remained absent before the trial Court, hence, they were directed to be proceeded ex-parte. Plaintiff has produced his evidence, however, Mr. S.P. Tyagi, Advocate counsel for the plaintiff on 12.1.2004 suffered a statement before the trial Court to the effect that he may be permitted to withdraw the suit with liberty to file a fresh suit on the same cause of action. The trial Court vide order dated 12.1.2004 permitted Mr. S.P. Tyagi, Advocate to withdraw the suit with liberty to file a fresh suit on the same cause of action. Thereafter, plaintiff -petitioner herein moved an application under Section 151 CPC for recalling of the order dated 12.1.2004, on 30.7.2008. The application so moved by the plaintiff for recalling of the withdrawal order was dismissed by the trial Court vide order dated 18.8.2008, having observed that the plaintiff could not prove that his counsel has withdrawn the suit without his permission. Another ground taken was that the application for recalling the order was moved after more than four years. Feeling aggrieved from the order dated 18.8.2008, plaintiff preferred an appeal, which too was dismissed by the Additional District Judge, Sonepat, vide order dated 3.10.2008, having observed that appeal against the order passed on an application under Section 151 CPC is not maintainable. Thereafter, the plaintiff has approached this Court by way of filing the present petition. I have heard learned counsel for the parties and perused the record. Thereafter, the plaintiff has approached this Court by way of filing the present petition. I have heard learned counsel for the parties and perused the record. Perusal of the plaint would show that the plaintiff has filed suit for declaration contending therein that he is in actual physical possession and is cultivating the land in dispute and the defendants are disputing his title and possession. It is also revealed from the perusal of the record that all the defendants were served but did not appear before the trial Court and were proceeded ex-parte. It is also revealed from the record that the plaintiff has examined himself as a witness and has produced the entire material before the trial Court. However, on the date when the case was listed for final arguments, Mr. S.P. Tyagi, Advocate, all of a sudden withdrew the suit with liberty to file fresh suit on the same cause of action. It is also revealed from the perusal of the application filed under Section 151 CPC that plaintiff has stated in the application for recalling the order of withdrawal that he has never instructed Mr. S.P. Tyagi, Advocate to withdraw the suit and there was no occasion for Mr. S.P. Tyagi, Advocate to withdraw the suit. It has also been contended in the application for recalling the order of withdrawal that the plaintiff has made a complaint against Mr. S.P. Tyagi, Advocate before the Bar Council. What transpired between the plaintiff and his counsel can be gathered from the circumstances of the case. There is a basic principle that a person can tell a lie but circumstances cannot. What transpired between the plaintiff and his counsel is nothing which can be agitated by defendants-respondents herein. In the peculiar facts and circumstances that in the suit filed by the plaintiff, defendants were not appearing before the trial Court and were proceeded ex-parte and the plaintiff has led entire evidence. I do not think that there was any justification for Mr. S.P. Tyagi, Advocate to withdraw the suit without any reason. Moreover, suit remained pending for 11 years. Withdrawing the same to file a fresh one on the same cause of action, seems to be most unjustified because after 11 years, second suit would have become time-barred. All these conduct show that Mr. S.P. Tyagi, Advocate to withdraw the suit without any reason. Moreover, suit remained pending for 11 years. Withdrawing the same to file a fresh one on the same cause of action, seems to be most unjustified because after 11 years, second suit would have become time-barred. All these conduct show that Mr. S.P. Tyagi, Advocate has withdrawn the suit without the permission and instructions of the plaintiff for the reasons best known to him and this Court is restraining itself from making adverse comments on the conduct of Mr. S.P. Tyagi, Advocate. Rejection of the application for recalling the order by the trial Court seems to be unjustified. For the reasons recorded hereinabove, dismissal of the appeal by the Additional District Judge, Sonepat, on the ground that appeal is not maintainable, is correct, however, once plaintiff has approached this Court by way of filing petition under Article 227 of the Constitution of India, order passed by the Appellate Court will not come before this Court. Consequently, present petition is allowed. Orders dated 12.1.2004 and 3.10.2008 are set aside. Suit is restored to its original number. Parties are directed to appear before the trial Court on 30.11.2010. Before the trial Court, defendants who are represented by Mr. Sandeep Gahlawat, Advocate, shall file written statement, if they so wish, by 30.12.2010 and thereafter, the trial Court shall proceed in accordance with law and shall decide the suit within 18 months. Plaintiff shall pay Rs.5,000/-as costs to the defendants within 15 days from today.