( 1 ). This application on behalf of the plaintiffs under Section 151 of the Code of Civil Procedure, 1908 seeks the recalling of the Order dated 1st September, 2000 and revival of the present suit.

( 2 ) FOR ready reference, the Order dated 1st september, 2000 reads as follows:- "01. 09. 2000. Present: Mr. Ravinder Sethi, Sr. Advocate with Mr. Pramod Gupta for the plaintiff. Mr. J. P. Gupta for the defendants. Suit No. 1570/99 counsel for the plaintiff craves leave of this court to withdraw the suit on the strength of the affidavit annexure `a and the receipts and possession letter, dated 7. 12. 1999 (Page Nos. 36 to 41) of the documents file. The counsel for the defendant does not deny the signature on the receipts and the possession letter. Leave granted. The suit is dismissed as withdrawn. " This order was passed on an application under order XXIII Rule 1 CPC filed by the plaintiff.

( 3 ) THE plaintiff has filed the present suit seeking a recovery of Rs. 81 lakhs against the defendants on account of the deficiencies committed by them as civil contractors in the work done at Virender Gram, Gurgaon. The claim raised in the plaint arises on account of the construction of the school building being constructed by the defendant No. 1 Company and defendant No. 2 its proprietor. It was averred that due to a settlement between the parties and in order to buy peace the plaintiff had agreed to pay Rs. 25 lacs to the defendant. After receipt without protest of the sum of Rs. 25 lacs in full and final settlement of its claim on 1. 9. 2000 the defendants resiled from such settlement and filed his own civil suit No. 147/2003 based on the same transactions as was the subject matter of CS (OS) No. 1570/99 filed by the plaintiff. Since the defendant after the receipt of the sum of Rs. 25 lacs as full and final settlement of his claims has attempted to back out of the settlement, this application was filed for revival of suit No. 1570/99. The order of 1st September, 2000 clearly refers to receipts and possession letter dated 7th December, 1999 and recorded the statement of the defendant s counsel who did not deny the signature on the receipt and possession letter dated 7th December, 1999.

( 4 ) THE application under Order 23 Rule 1 filed by the plaintiff clearly stated that the parties have settled their disputes and in paragraph 3 of the affidavit dated 7th December, 1999 annexed to the application dated 9th December, 1999, filed under Order vii Rule 14 CPC, it was averred as follows:-

"3. That M/s Aar Ess and Company with the mutual concurrence of Virendra Bhatnagar Sansthan has now decided to part ways and terminate the contract mid-way. All the outstanding dues, as on date, have been satisfactory settled and there are no more claims pending on each other. "

( 5 ) IT is not in dispute that the total amount paid to the defendant as recorded in the Order dated 1st september, 2000 was a total sum of Rs. 25 lacs. Mr. Gupta, who appears on behalf of the defendant has strenuously objected to this application for revival of the present suit by contending that the Order dated 1st september, 2000 while recording the non-denial of the signature of the receipts and the possession letter given by the defendant, nevertheless did not take into account the averments made by the defendant in reply to the application under Order 23 Rule 1 wherein coercion was alleged in respect of the execution of the said documents. He, therefore, says that the plaintiff took its own chance in withdrawing this suit and cannot now be heard in an application to revive the said suit on the present averments made in the present application for revival. He submits that merely because the signatures were not denied on the receipts and possession letter by the defendants as recorded in the order dated 1st september, 2000, it did not amount to waiver of the averments made by him in reply to the application for withdrawal of the suit which inter alia pleaded coerc