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2013 DIGILAW 400 (PNJ)

Simal v. Maharashtra Savings

2013-03-26

T.P.S.MANN

body2013
JUDGMENT Mr. T.P.S. Mann, J.: (Oral) - The defendants have filed the present revision under Article 227 of the Constitution of India for challenging the order passed by the Additional Civil Judge (Senior Division), Gurgaon on 12.2.2013 whereby application filed by the plaintiff-respondent for recalling the order dated 2.9.2011 was allowed. 2. The plaintiff-respondent had filed suit for specific performance of agreement to sell dated 15.1.2007. Upon notice, the defendants filed their reply. The plaintiff filed replication thereto. Subsequently, on 2.9.2011 the plaintiff through its attorney made a statement before the trial Court that it did not want to pursue the suit further as the matter had been compromised and, therefore, the suit may be allowed to be withdrawn. In view of the said statement, the suit was dismissed as having been withdrawn. Later on the plaintiff filed an application for recalling the order dated 2.9.2011 pleading therein that when its suit was posted for examination of its witnesses, the defendants offered to compromise the matter. They made specific representation that they would execute the sale-deed of the land in question in favour of the plaintiff on receiving the remaining sale consideration. The defendants, however, insisted upon the plaintiff to withdraw the suit before any compromise could take place. In view of the said stand of the defendants, the plaintiff was left with no other option but to make a statement through its attorney withdrawing the suit. The said order was passed in the presence of the counsel for the defendants. However, the entire exercise of the defendants in influencing the plaintiff to withdraw the suit by making misrepresentations and using undue influence was a farce. Once the plaintiff withdrew the suit, the defendants did not adhere to their offer of a compromise. As such the plaintiff was left with no other option but to seek recalling of the order dated 2.9.2011 and restoration of the suit so that the same be decided on merits. 3. After hearing counsel for the parties, the trial Court while passing the impugned order held that the plaintiff was fully justified in moving the application under Section 151 CPC for recalling the order dated 2.9.2011 as it had withdrawn the suit under the impression of compromise and the defendants had, thereafter, refused to execute the sale-deed in its favour. 4. After hearing counsel for the parties, the trial Court while passing the impugned order held that the plaintiff was fully justified in moving the application under Section 151 CPC for recalling the order dated 2.9.2011 as it had withdrawn the suit under the impression of compromise and the defendants had, thereafter, refused to execute the sale-deed in its favour. 4. Admittedly, on 2.9.2011 when the plaintiff through its attorney had made a statement before the trial Court that the matter stood compromised, the counsel for the defendants was very much present. He did not inform the Court that no such compromise had taken place between the parties. Once there was some offer of compromise made by the defendants, the plaintiff felt assured and, accordingly, proceeded to withdraw its suit. Later on when the defendants did not stick to their stand, the plaintiff was left with no other option but to file the application under Section 151 CPC for getting the suit restored after recalling the order dated 2.9.2011. 5. Counsel for the petitioners has submitted that once the suit had simply been withdrawn by the plaintiff without any condition as regards the compromise, no such application under Section 151 CPC was maintainable for recalling the order of withdrawal of the suit and the plaintiff may have its other remedy. In this regard, reliance has been placed upon Ram Kishan and another Vs. Hari Ram, [2007(4) Law Herald (P&H) 3243] : 2008(2) RCR(Civil) 471. 6. It is true that while making statement before the trial Court on 2.9.2011, the plaintiff had not set out the conditions of the compromise and simply stated that the matter stood settled and, therefore, it wanted to withdraw the suit. The aforementioned stand of the plaintiff about the compromise was not opposed by the counsel for the defendants, who was very much present at the time of passing of the order. If there was no such compromise, the counsel for the defendants could have informed the trial Court that the plaintiff had been withdrawing the suit without any rhyme or reason as there was no compromise between the parties. If there was no such compromise, the counsel for the defendants could have informed the trial Court that the plaintiff had been withdrawing the suit without any rhyme or reason as there was no compromise between the parties. Moreover, the judgment in the case of Ram Kishan (Supra) is not directly applicable to the facts and circumstances of the present case as in that case the matter had reached the stage of second appeal when the appellant therein made a statement withdrawing the suit on the basis of compromise between the parties. On the other hand, the suit in the present case was still at the preliminary stage of recording of the evidence of the plaintiff. At such a stage even mere offer of compromise by the defendants could be considered as sufficient for the plaintiff to make a statement for withdrawing the suit and, thereafter, ask the defendants to execute the sale-deed in terms of the agreement to sell. 7. Resultantly, there is no merit in the present revision, which is, accordingly, dismissed.