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2014 DIGILAW 1637 (ALL)

Tabassum Ghazala v. Ravi Bala Garg

2014-05-20

PANKAJ NAQVI

body2014
JUDGMENT : Pankaj Naqvi, J. Heard Sri Ashish Kumari Singh learned counsel for revisionist and Sri B.B. Jauhari holding brief of Sri Rishi Bhushan learned counsel for opposite parties. 2. This Civil Revision has been preferred by defendants against order dated 30.04.2013 passed in Original Suit no.274 of 2004, whereby the Trial Court has rejected an application (Paper no.145C), filed by the power of attorney holder of plaintiffs for dismissing the suit as withdrawn. 3. Brief facts giving rise to this revision are enumerated hereunder. 4. Ravi Bala Garg and Amit Garg, plaintiff-respondents-Ist set filed Original Suit no.274 of 2004 in the Court of Civil Judge (Senior Division) Allahabad for declaration that the freehold-deed dated 29.03.2004 executed in favour of the revisionists/ defendant, i.e. Smt. Tabassum Ghazala be declared as null and void. A decree of mandatory injunction was also sought that defendants be directed to transfer the property in dispute in favour of plaintiffs. It is not disputed that the Trial Court on 27.04.2004 passed an ad-interim injunction in favour of plaintiff-respondents - Ist set, which stood confirmed upto the Apex Court in SLP (Civil) No. 5212 of 2005 with the dismissal of SLP on 21.07.2006. However, on 25.07.2008 an alleged settlement was arrived at whereunder revisionist is alleged to have paid Rs.2.75 crores, out of which Rs.1.30 crore was paid through 3 different banker's cheques dated 25.07.2008 and balance Rs.1.45 crore in cash for which an alleged receipt was issued. It is alleged that on the same date, i.e. on 25.07.2008, plaintiff-respondent no.1 vacated the property in dispute and handed over the possession thereof to her attorney holder Sri Lal Chandra Nirmal. It is alleged that on the same date, a registered power of attorney dated 25.07.2008 was also executed by the plaintiff-respondents Ist set in favour of Sri Lal Chandra Nirmal, under which he was given authority to deal with the matter in respect of seven suits, which are alleged to be pending between the parties including the power to compound and compromise. Acting in furtherance thereof, Sri Lal Chandra Nirmal the attorney filed an application for withdrawal of suit (Paper no.145-C) on 06.08.2008. On 23.10.2008, plaintiff-respondents no. 1 and 2 filed application (Paper no.151-C) that the alleged compromise is illegal as plaintiffs have already cancelled the power of attorney of Lal Chandra Nirmal. Acting in furtherance thereof, Sri Lal Chandra Nirmal the attorney filed an application for withdrawal of suit (Paper no.145-C) on 06.08.2008. On 23.10.2008, plaintiff-respondents no. 1 and 2 filed application (Paper no.151-C) that the alleged compromise is illegal as plaintiffs have already cancelled the power of attorney of Lal Chandra Nirmal. On 06.11.2008, an application (Paper no.154-C) was also filed by respondent-plaintiff Ist set that withdrawal application filed by Lal Chandra Nirmal was not maintainable as he was only a care-taker of the property in dispute and was not empowered to withdraw the suit filed on behalf of plaintiff-respondents Ist set. It is not disputed that the power of attorney dated 25.07.2008 in favour of Lal Chandra Nirmal was cancelled on 21.04.2009. 5. The Trial Court vide its order dated 30.04.2013 rejected the application (Paper no. 145-C), filed by the attorney of plaintiff, i.e. it refused to dismiss the suit as withdrawn. 6. It is submitted by Sri Ashish Kumar Singh, learned counsel for revisionist that once attorney holder of plaintiff/respondent Ist set, i.e. Lal Chandra Nirmal filed an application (Paper no. 145-C) praying that the suit be dismissed as withdrawn, then on mere filing of the said application, suit was deemed to be dismissed as withdrawn and no further orders were necessary. He in support of his contention relied upon a Division Bench judgment of this Court in the case of Smt. Raeesa Sultana Begum v. Abdul Qadir, AIR 1966, All 318. He further submitted that in view of the judgment of this Court in the case of State Bank of India, Deoria v. Firm Jamuna Prasad Jaiswal & sons and others, AIR 2003 All 337 , wherein this Court has held that before plaintiff could be permitted to withdraw suit, finding is to be recorded by the Trial Court that there was a sufficient cause to do so and as in the present case, considerable exchange of money had taken place between the parties, it was no longer open for the Trial Court to proceed with the suit. 7. Per contra, Sri Jauhari learned counsel for respondents submitted on the strength of the judgment of the Apex Court in the case of Rajendra Prasad Gupta v. Prakash Chandra Misra, 2011 (2) SCC 705 that the Court is conferred with adequate power to permit the withdrawal of the withdrawal application. 7. Per contra, Sri Jauhari learned counsel for respondents submitted on the strength of the judgment of the Apex Court in the case of Rajendra Prasad Gupta v. Prakash Chandra Misra, 2011 (2) SCC 705 that the Court is conferred with adequate power to permit the withdrawal of the withdrawal application. He further submits that in view of said decision of the Apex Court, the Division Bench judgment in the case of Raisa Sultana (supra) stands impliedly over-ruled, and expressly over-ruled in the judgment of Ram Janma Bhoomi, i.e. Original Suit no.4 of 1989 decided by this Court on 30.09.2010 [Relevant paragraphs 1029, 1030, 1031 and 1036]. 8. It is not disputed that application (Paper no.145-C) dated 06.08.2008 filed by the attorney-holder of the plaintiff was an application under Rule 1 Order 23 of the "Code". It is also not disputed that on the said date, power of attorney of Lal Chandra Nirmal was subsisting. However, moot issue before the Court is as to whether application (Paper no.145/C) stood allowed upon mere filing or was it contingent upon further orders of the Court. The issue is no longer res-integra in view of the decision of the Apex Court in the case of Rajendra Prasad Gupta (supra), wherein the Apex Court held that powers under Section 151 of the Code are to be exercised ex debito justitiae, i.e. in the interest of justice. Since there is no specific provision in the Code for dealing with such a contingency i.e. of withdrawal of a withdrawal application, power under Section 151 of the Code could always be invoked. The decision of Rajendra Prasad Gupta (supra) has been quoted with approval in the subsequent decision of the Apex Court in the case of Ratan Bai v. Ram Das, 2012 (3) SCC 48. Thus the position, which emerges is that it is always open for the plaintiff to withdraw the withdrawal application. 9. Reverting to the facts of the present case, the Court finds that an application (Paper no. 145-C) for seeking withdrawal of the suit was filed by attorney-holder on 06.08.2008, whereas an application (Paper no. 151-C) conveying the intention of the plaintiffs to prosecute the suit was filed on 23.10.2008, thus ignoring the withdrawal application filed on 06.08.2008. The intention was further manifested in subsequent application (Paper no. 145-C) for seeking withdrawal of the suit was filed by attorney-holder on 06.08.2008, whereas an application (Paper no. 151-C) conveying the intention of the plaintiffs to prosecute the suit was filed on 23.10.2008, thus ignoring the withdrawal application filed on 06.08.2008. The intention was further manifested in subsequent application (Paper no. 154-C), which was filed on 06.11.2008 conveying an unequivocal intention of plaintiff that they were desirous of prosecuting the suit, i.e. the withdrawal application (Paper no.145-C) filed by Attorney holder was not to be given any effect. Thus in view of the unequivocal conduct of the plaintiff/respondent Ist set, it was no longer open for defendants/revisionists to press the earlier withdrawal application filed by plaintiff/respondent Ist set attorney. 10. Sri Singh learned counsel for revisionist contended on the strength of observations made in paragraph-9 in the case of State Bank of India (supra) that before withdrawal of withdrawal application is permitted, the Court has to advert on the sufficiency of cause, which is missing in the present case. 11. The Court has perused the said judgment and is of the view that the issue stands crystallized in the case of Rajendra Prakash Gupta (supra) which confers an unfettered right on the plaintiff to seek withdrawal of the application for withdrawal. 12. Sri Singh then contended that as considerable exchange of money had taken place, Trial Court be directed to pass appropriate orders to refund the same. Be that as it may, it is always open for revisionist to initiate appropriate proceedings for recovery of the amount. 13. No other plea is urged. 14. The order impugned does not suffer from any jurisdictional error. 15. The revision is dismissed. No order as to costs. Revision dismissed.