Kuldeep Singh vs Virender Singh and Another

Paramjeet Singh, J.—Instant revision petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 03.10.2009 (Annexure P/3) passed by learned Civil Judge (Junior Division) Charkhi Dadri, whereby application moved by the petitioner for recalling order dated 02.09.2005 has been dismissed. Brief facts relevant for disposal of this revision petition as averred in the petition are that the petitioner-plaintiff filed a suit for declaration and possession against the respondents-defendants. The said suit was a family dispute. Due to the intervention of the relatives and friends, the respondents-defendants allegedly agreed and assured the petitioner-plaintiff that they will retransfer the suit property in his name. There was an oral compromise between the parties in the presence of relatives and friends. Believing the assurance of the respondents defendants and relatives, the petitioner-plaintiff withdrew the aforesaid suit without liberty to file fresh suit on the same cause of action after 15 days of its filing and even before effecting of service on the respondents-defendants. The respondents-defendants did not abide by the oral compromise and assurance and resiled horn the compromise. Thereafter, the petitioner moved an application dated 21.08.2006 for recalling order dated 02.09.2005 and for restoration of the aforesaid suit for decision on merit. The said application was dismissed vide impugned order dated 03.10.2009 (Annexure P/3). Hence, this revision petition.

I have heard learned counsel for the petitioner and perused the record.

Learned counsel for the petitioner contended that the suit was dismissed as withdrawn in view of oral compromise between the parties to the suit, even the services was not effected upon the respondents defendants. Admittedly, the suit was withdrawn without seeking permission to file a fresh suit on the same cause of action. Although, the petitioner moved an application after about one year, but no prejudice would be caused to any of the party if suit is restored; rather if the suit is not restored to its original number, injustice would be caused to the petitioner. The Court has inherent power to restore the suit u/s 151 CPC. Learned counsel for the petitioner has relied upon a judgment of Hon''ble Supreme Court in Jet Ply Wood Private Ltd. and Another Vs. Madhukar Nowlakha and Others, .

I have given thoughtful consideration to the contentions of the learned counsel for the petitioner and perused the judgment cited by the learned counsel for the petitioner.

Admittedly, the petitioner-plaintiff had filed a suit against his son and brother, so the suit is between the family members. Even no service was effected upon the respondents-defendants as suit was withdrawn in 15 days of filing. The Hon''ble Supreme Court in the case of Jet Ply Wood Private Ltd. (supra) has held that the Court has inherent power to recall its order and restore the suit. The Hon''ble Supreme Court in the aforesaid judgment has held as under:--

The aforesaid position was reiterated by the learned Single Judge of the High Court in his order dated 4th February, 2005, though the language used by him is not entirely convincing. However, the position was clarified by the learned Judge in his subsequent order dated 14th March, 2005, in which reference has been made to a bench decision of the Calcutta High Court in the case of Rameswar Sarkar (supra) which, in our view, correctly explains the law with regard to the inherent powers of the Court to do justice between the parties. There is no doubt in our minds that in the absence of a specific provision in the CPC providing for the filing of an application for recalling of an order permitting withdrawal of a suit, the provisions of Section 151 of the CPC can be resorted to in the interest of justice. The principle is well established that when the CPC is silent regarding a procedural aspect, the inherent power of the court can come to its aid to act ex debito justitiae for doing real and substantial justice between the parties. This Court had occasion to observe in the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, as follows:

It is well settled that the provisions of the Code are not exhaustive, for the simple reason that the Legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them.

Based on the aforesaid principle, the Division Bench of the Calcutta High Court, in almost identical circumstances in Rameswar Sarkar''s case, allowed the application for withdrawal of the suit in exercise of inherent powers u/s 151 of the Code of Civil Procedure, upon holding that when through mistake the plaintiff had withdrawn the suit, the Court would not be powerless to set aside the order permitting withdrawal of the suit.

In view of the law laid down herein above, admittedly in the present case, the suit was dismissed as withdrawn by the petitioner plaintiff on account of oral compromise effected between the parties in hope that the respondents-defendants will restore back the property to him. The withdrawal of suit without permission to file on the same cause of action may be by mistake or the wrong advice of the counsel. When the situation is such, then the Court is not powerless to order restoration specifically when no prejudice would be caused to anyone specially the defendants. In view of this, present revision petition is allowed. Impugned order dated 03.10.2009 (Annexure P/3) is set aside and the application dated 21.08.2006 filed by the petitioner for restoration of civil suit is allowed. The suit is ordered to be restored to its original number and trial Court is directed to proceed in accordance with law. Petitioner is directed to appear before the trial Court on 21.10.2013.