A petition cannot be withdrawn by one plaintiff without the consent of all plaintiffs, and fraud in the withdrawal process necessitates a court's power to recall its dismissal order.

JUDGMENT

Jayant Banerji, J.

Civil Misc. Delay Condonation Application No.14 of 2022 Civil Misc. Recall Application No.15 of 2022

The aforesaid applications have been filed on 29.04.2022 seeking condonation of delay in filing the recall application, and to set aside the order dated 25.03.2022 passed by another bench of this Court dismissing the aforesaid petition as withdrawn, and for restoring it to its original number and deciding the same on merits.

2. The aforesaid applications have been filed by Sri. Arun Kumar, Sri. N.D. Shukla and Sri. Vivek Shukla, Advocates on the strength of a vakalatnama of the petitioner no.1/1-Vijay Bahadur Singh, petitioner no.1/2-Ashok Kumar Singh, petitioner no.2-Awadh Narain Singh, petitioner no. 3-Mangaru Singh, petitioner no.4-Suman Devi and petitioner no. 5 Rajan Singh. Though in the vakalatnama where the names are written, the names of petitioner no. 1/3 and petitioner no.1/4 as well as petitioner no. 6 and petitioner no. 7 are also mentioned. However, their signatures do not appear in the vakalatnama.

3. In the affidavit accompanying the aforesaid applications that is sworn by the petitioner no. 2-Awadh Narain Singh, after giving the background of the suit and the proceedings leading to the filing of this petition, it has been stated that on the date fixed in the aforesaid petition on 28.07.2005, on the statement of counsel for the petitioners, the petition was dismissed as not pressed. In the month of March 2012, the petitioner No. 1 Mahadeo Singh (since deceased), made inquiries and came to know that one Sri. Shivshankar Prasad Gupta, Advocate had filed an application for withdrawal of the aforesaid petition on 10.05.2005, on which this Court had passed the order dated 28.07.2005, dismissing the petition as not pressed. It is stated that an application for withdrawal of the order dated 28.07.2005 was filed on 09.04.2012 by Sri. Varindra Kumar Rai, Advocate, one of the original counsel in the petition and Sri. Aashish Mishra Advocate. Withdrawal Application No.15148 of 2012 was allowed by the order of this Court dated 06.08.2018, and the petition was restored to its original number. On the death of Mahadeo Singh, petitioner No. 1, a substitution application to substitute his legal representatives, was allowed by this Court by an order dated 23.03.2022. It has further been stated as follows:-

"14. That, on 02.03.2022, Sri. Varindra Kumar Rai, and Sri. Ashish Mishra, Advocates, had filed an application for withdrawing the Civil Misc. Petition No. 4535 of 2019, supported by an Affidavit of Awadh Narayan Singh, the petitioner no.2, verified by Sri. Ashish Mishra, Advcoate. As the photo identification centre was not operational due to Covid Protocol a declaration on behalf of Awadh Narayan Singh was signed by Sri. Ashish Mishra and Varindra Kumar Rai, Advocates as counsels for the applicant.

15. That, on 25.03.2022, a duly sworn in affidavit was filed by Awadh Narayan Singh, the petitioner no.2, in support of a Supplementary Withdrawal Application for dismissing the abovementioned petition as withdrawn. The Hon'ble Court by its order dated 25.03.2022, was pleased to allow the withdrawal application and dismiss the abovementioned petition as withdrawn. A true copy of order of this Hon'ble Court dated 25.03.2022, referred to above, is being filed herewith and marked as Annexure-'1' to the affidavit.

16. That, the deponent had come to Allahabad on 25.03.2022, as his counsel had called him for swear