Rattan Bai & ANR.
Vs. Ram Dass & Ors.
[Civil Appeal No.
1614 of 2012 arising out of SLP (Civil) No.25388 of 2011]
J U D G M E N T
appeal arises out of the final order dated 8th March, 2011 of the Punjab and
Haryana High Court in Civil Revision No. 1075 of 2011 under Article 227 of the Constitution
of India. By the said order, the High Court dismissed the Revision filed by the
Nos.1 to 3 herein instituted a Civil Suit No. RBT 124/22.05.2006 on the file of
Civil Judge, Senior Division (S.D.) Jhajjar, against the two appellants herein
and two others.
4 to 7 herein are the legal representatives of one Kanta Bai, who died during
the pendency of the suit and the said Kanta Bai was one of the other two
defendants in the suit.
copy of the plaint is not available on record but it appears that the suit was
filed for the specific performance of an agreement of sale of immovable
property and for the possession of the said property.
defendants (appellants herein) contested the suit. They filed a written
statement on 2.12.2006.
18.12.2007, an application (Annexure P-2) came to be filed purportedly on
behalf of the three plaintiffs (respondents 1 to 3 herein), but signed only by respondents
1 and 3 alone. The relevant portion reads as follows:- "Aforementioned titled
case is fixed for 4.8.2010 for defendants evidence and in the afore-stated case
the applicant plaintiff has compromised with the defendant in the suit I have neither
any claim against the defendant nor I intend to continue the suit. Therefore,
it is prayed that file be summoned and the suit on behalf my self plaintiff no.3
be dismissed and file be consigned, I will be highly grateful."The application
was accompanied by an affidavit of the third respondent herein, wherein he made
a statement that he had 3compromised the suit with defendants and he did not wish
to continue the suit, and, therefore the same be dismissed.
P-3, purportedly a vakalatnama in favour of one Shri A.K. Saini, advocate in
the above mentioned civil suit, came to be executed on the same day, i.e.
18.12.2007 by the respondents 1 to 3. However, it must be mentioned herein that
Annexure P-2, application was signed by an advocate by name Shri Arun Kumar
along with two plaintiffs mentioned above.
trial court did not pass any order either accepting or rejecting the
application. (Annexure P-2)
4.8.2010, a joint statement (Annexure P-4) of first respondent and the above-mentioned
advocate Shri Arun Kumar allegedly representing respondents 1 and 3 herein was
recorded by the Trial Court. The relevant portion reads as follows:- ".......stated
that we do not intend to continue with the suit and withdraw the suit on behalf
of plaintiff no.1 and 3."
7.8.2010, the first respondent herein gave another affidavit (Annexure P-5)
before the Trial Court. The relevant portion reads as follows:-
above noted suit has neither filed by me nor above noted suit bears my
pertaining to the agreement to sell we were not having sufficient funds within limitation
and my compromise with Rattan Bai, Ram Phool took place in the year 1999.
in the afore-stated case I have neither furnished any power of attorney as plaintiff
nor any General Power of Attorney has been given by me.
in the afore-stated suit I have falsely been impleaded as plaintiff and my
signatures are also forged.
in the aforesaid suit I have neither engaged any counsel nor purchased any stamp
nor any witness has been produced by me on my behalf. The entire proceedings in
this case carried out on my behalf are false and forged."
the background mentioned above, an application, Annexure P-7, came to be filed
on behalf of the appellants herein. It does not contain any date. But in the opening
paragraph of the said application it is stated as follows:- "That the
above noted civil bearing no.124 of 2006 is pending in this Hon'ble Court and the
same is fixed for hearing on 28.1.2010."
normal inference of the above extracted statement should be that the application
was filed sometime prior to 28th January, 2007. However, the remaining
paragraphs referred to events which took place on 4.8.2010 i.e. the date of
joint statement (exhibit P-4). It is not clear from the record whether the
Annexure P-7 is a true copy of certified copy of the application filed by the appellant
herein. The appellant herein owes an explanation with regard to the discrepancy
of the dates referred to above. Para 4 of the said application reads as
"That the defendants
applicants are not alleging any malafide intention on the part of the learned
presiding officer inspite of the fact that some undesirable persons are claiming
that they have approached the learned presiding officer and the order for
withdrawal and dismissal of the suit qua the claim and relief claimed by
plaintiffs nos.1 and 3 will not be passed nor the suit will be dismissed.
But it appears that
inadvertently and due to oversight the orders for dismissal of the suit filed
by plaintiffs nos.1 and 3 has not been passed inspite of the statement dated
4.8.2010 made by their counsel along with Ram Dass plaintiff read with the application
moved earlier by Jawahar plaintiff No.3.
It is, therefore,
prayed necessary orders for dismissal of civil suit on behalf of plaintiffs 1 and
3 may kindly be passed keeping in view the above said circumstances as they have
already withdrawn the same and have sought the dismissal of their suit."In
substance, praying that the suit be dismissed in so far as it pertains to
respondents Nos. 1 and 3 herein.
the matter stood, thus, another application (Annexure P-8) came to be filed on 16.9.2010
purportedly on behalf of the first respondent herein. The substance of the application
is that annexure P-2 application dated 18.12.2007 and the statement dated
4.8.2010 (annexure P-4) had been wrongly submitted by the above-mentioned Advocate
Shri Arun Kumar and, therefore, the first respondent herein be allowed to
withdraw the same and pursue the suit. The prayer portion is as follows:- "It
is therefore prayed that the application dated 4.8.10/18.12.07 has been wrongly
submitted before the Hon'ble Court by Sh. Arun Kumar Advocate. Hence applicant
may please be allowed to withdraw the said application dated 4.8.10/18.12.07 and
further be retained as a plaintiff in the said suit in the interest of justice."
is also stated in para 3 of the affidavit as follows:- "That the applicant
never engaged Sh. Arun Kumar as his advocate and further never intended to submit
such applicant. The applicant/plaintiff has not reached to a compromise with defendants."
said application was supported by an affidavit of the first respondent herein wherein
the first respondent reiterated the various allegations made in the application
portions of which are extracted earlier. An identical application and affidavit
(Annexure P-9) also came to be made by the third respondent herein on the same
date i.e. on 16.9.2010.
applications were contested by the appellants herein by filing a counter.
1.2.2011 the trial court recorded the statement by one Shri M.S. Gulia, Advocate
said to be appearing for the plaintiffs. The statements as follows:- "....Stated
that I do not press the application dated 18.12.2007 and 4.8.2010."
the trial court passed an order on the same date which reads as follows:- "
Sh. M.S. Gulia Ld. Counsel for plaintiff has made a statement that he does not
press the application order dated 18.12.2007 & 4.8.2010, accordingly. Both the
applications is disposed off accordingly. Now come upon 8.2.2011 for rebuttal
evidence, if any and arguments."
by the said order, the appellants herein carried the matter by way of Revision
under Article 227 of the Constitution of India to the Punjab and Haryana High Court
by the order under appeal. The said revision was dismissed. The High Court held
- "The learned trial Court was well within its jurisdiction to allow the withdrawal
of application dated 18.12.2007 and statement dated 4.8.2010 under its inherent
powers and this view can be supported by way of the latest judgment of Hon'ble Supreme
Court in Rajinder Prasad Gupta v. Prakash Chandra Mishra (2011) 2 Supreme Court
Cases 705 ................"The High Court after examining four paragraphs of
the above-mentioned judgment finally held - "In my considered opinion, the
impugned order is innocuous and no prejudice will be caused to the defendants- petitioners
as they will have full opportunity to present their case before the learned
trial Court at the relevant stage. Keeping in view the facts and circumstances discussed
hereinabove, this Court finds no illegality or perversity in the impugned order
dated 1.2.2011 (P.16) passed by the learned Civil Judge (Sr. Division), Jhajjar
warranting interference under Article 227 of the Constitution."
senior counsel for the appellant Mr. Brijender Chahar argued that the High Court
erred in dismissing the Revision. He further submitted that the question is not
whether the trial Court had the inherent power to permit the respondent-plaintiffs
to go back on their earlier "applications" dated 4.8.2010 and
18.12.2007 but in the circumstances of the case particularly in the background
of the reasons given in the affidavit dated 7.8.2010 (p.5) wherein 8the 1st respondent
herein made a categoric allegation that he had been "falsely impleaded as a
plaintiff" and his signatures are "forged" etc. whether the
inherent power of the Court was exercised in accordance with the well
established principles of law.
the other hand, learned senior counsel for the respondent Mr. Uday U. Lalit
argued that even in cases where an application for withdrawal of the suit is
allowed, it is held by this Court that nothing prevents the plaintiffs to go
back upon the withdrawal. Therefore, nothing in law prevents the
respondents/plaintiffs to withdraw their applications for the withdrawal of the
suit. The learned counsel relied upon Jet Ply Wood (P) Ltd. and anr. Vs. Madhukar
Nowlakha & Ors., (2006) 3 SCC 699 and Rajendra Prasad Gupta Vs. Prakash Chandra
Mishra & Ors., (2011) 2 SCC 705 in support of his submissions.
rightly contended by the learned counsel for the appellant, the issue is not
whether the trial court has the power to permit the withdrawal of the
applications filed earlier to the withdrawal of the suit but whether such
powers was exercised in accordance with law and for the purpose for which it is
meant. The mere existence of a power does not justify the exercise of the
power. In the context of the powers of the judicial bodies, all powers are required
to be exercised with a view to secure ends of justice. In neither of the 9above-mentioned
two cases this Court had an occasion to examine whether the inherent power of the
Civil Court under Section 151 CPC was properly exercised.
In the 1st case, the suit
had been withdrawn by the plaintiffs and the plaintiffs subsequently sought to
go back upon the withdrawal and reopen the suits on the ground that they were
induced to withdraw the suit on a misrepresentation made by the defendants. In
the 2nd case, the plaintiff "changed his mind" after filing the applications
for withdrawal of the suit and sought to withdraw the said application even
before a formal order permitting the withdrawal was passed the Court. The
argument in both the cases was the trial Court lacked the jurisdiction to
permit the course of action undertaken by the plaintiffs. This Court only laid down
the principle that Section 151 of CPC recognises the existence of ample power
on the Civil Court to permit the plaintiffs to pursue the course of action
undertaken by them.
Jet Ply Wood (supra), the trial Court rejected the application of the
plaintiffs "recalling the order by which the suit had been permitted to be
withdrawn". The High Court recalled the order and restored the suit. Dealing
with the case, this Court held at para 24 - "................... which indicates
that the court did not find any scope to exercise its inherent powers under
Section 151 of the Code of Civil Procedure for recalling the order passed AIR
1962 SC 527 = Section 151 CPC does not cater but only recognizes the powers,
which are inherent in the civil court. by it earlier. In the circumstances set out
in the order of 24, 2004, the learned trial court felt that no case had been made
out to recall the order which had been made at the instance of the plaintiff himself.
It was, therefore, not
a question of lack of jurisdiction but the conscious decision of the court not to
exercise such jurisdiction in favour of the plaintiff."This Court did not examine
the question whether "the conscious decision of the Court not to exercise
such jurisdiction" was justified. This Court only held that the High Court's
decision to reverse the trial Court's order - not to permit the recall of the earlier
order permitting the withdrawal of the suit - does not call for interference. "
27. We are of the
view that the law having been correctly stated in the aforesaid case, the
learned Singl Judge of the Calcutta High Court in making an order on the same lines
did not commit any error of jurisdiction which calls for any interference in
the fact situation on hand does not, in our opinion, justify permitting the respondents
1 and 3 to withdraw their earlier applications (p.2) dated 18.12.2007 and the statement
of the 1st respondent dated 04.08.2010 as a matter of course in the background
of the content of the affidavit (p.5) dated 7.8.2010. If the content of p.5 is proved
to be false, there is no validly constituted suit at least on behalf of the 1st
respondent. Secondly, the professional conduct of the counsel Mr. Arun Kumar
may require an examination in the interest of the purity of a justice delivery
system. If the content of P.5 is proved to be false, appropriate legal action
against the 1st respondent must be taken. His conduct apart from anything else amounts
to the abuse of the process of this Court.
the circumstances, we are of the view that the High Court erred in dismissing
the revision of the appellants herein.
allow the appeal and remit the matter to the High Court for an examination of the
factors indicated above and any other relevant factor which the High Court may deem
appropriate, if necessary even by taking evidence, and pass appropriate orders
in accordance with law. The trial of the suit shall stand stayed until the High
Court takes a final decision as indicated above.