Pardeep Singh and Others vs Krishna Rani and Others

Alok Singh, J.—Present petition is filed challenging order dated 1.2.2008 passed by the Civil Judge, Junior Division, Kurukshetra, as well as the judgment and order dated 5.11.2008 passed by the Additional District Judge, Kurukshetra, whereby suit of the Plaintiff was dismissed under Order 23 Rule 1(4)(b) CPC on the ground that the Plaintiff had earlier filed suit for declaration, declaring the impugned sale deed void, which was got dismissed as withdrawn vide order dated 13.6.2006 without any further liberty to file a fresh suit on the same cause of action.

Mr. Arun Palli, Sr. Advocate assisted by Mr. S.S. Dinarpur, Advocate argued that earlier suit was withdrawn because Plaintiffs were made to understand that the matter can be resolved in the Panchayat. He further argued that thereafter nothing was decided by the Panchayat and fraud was played on the Plaintiffs, hence, necessity arose for the Plaintiffs to file fresh suit. He states that since withdrawal order was outcome of fraud, hence, the Plaintiffs are at liberty to file an application u/s 151 CPC before the trial Court for recalling the order dated 13.6.2006, in view of the judgment of the Apex Court in the case of Jet Ply Wood Private Ltd. and Another Vs. Madhukar Nowlakha and Others, and Dankha Devi Agarwal (Dead) throurgh LRs. Vs. Tara Properties Pvt. Limited and Others, . He further states that he may be permitted to withdraw present petition as well as the present suit with permission to move an application in the previous suit to recall order dated 13.6.2006.

Mr. M.L. Sarin, Sr. Advocate assisted by Mr. Naresh K. Joshi, Advocate appearing for the Respondents states that the Petitioners may be permitted to withdraw this petition, but they may not be permitted to move an application before the trial Court. He further stated that no fraud was played on the Plaintiffs and the suit was withdrawn with open eyes.

I have heard learned Counsel for the parties.

I am of the view that the Petitioners can be permitted to withdraw the present petition alongwith present suit with liberty to move an appropriate application before the trial Court to recall the order dated 13.6.2006, being outcome of the fraud.

Present petition as well as present suit is allowed to be withdrawn with liberty to the Petitioners -Plaintiffs to move an appropriate application before the trial Court to recall the order dated 13.6.2006 and to get the suit restored to its original number.

It is clarified that if such an application is moved before the trial Court, that shall be decided in accordance with law at its own merits, without prejudice to the observations made in the impugned orders. The question of fraud can be raised in the application u/s 151 CPC and the same shall be decided in accordance with law.

Period consumed in the present proceedings and in the subsequent (present) suit may be considered by the trial Court u/s 14 of the Limitation Act.

A photocopy of the order be placed on the file of each connected case.