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2009 Supreme(UK) 628
2010 (1) UAD 436
SUPREME COURT OF INDIA
Hon’ble Mr. Justice Sudershan Reddy and Hon’ble Mr. Justice J.M. Panchal
Civil Appeal No. 8407 of 2009
DWARIKA PRASAD – Appellant
Versus
NIRMALA & ORS. – Respondents
Decided on : 17.12.2009
For the Respondents:Mr. Sunil Gupta, Sr. Adv., Mr. T.N. Singh, Mr. K.K. Mohan and Mr. V.K. Singh, Advocate, with him.
Headnote:(A) Civil Procedure Code, 1908, Or. 22, Rules 1, 3 and Hindu Succession Act, 1956, Secs. 6, 8 and Schedules — R. 3 of Or. 22, C.P.C. stipulates that when a sole plaintiff dies and the right to sue survies, the Court on an application made in that behalf, should cause legal representative of deceased to be made a party and shall proceed with the suit — Surviving daughter of deceased plaintiff being his legal representative was entitled to continue the suit in view of Secs. 6 & 8 and Schedule to Hindu Succession Act, 1956. (Para 7)
(B) Civil Procedure Code, 1908, Sec. 115 — Supervisory jurisdiction — Scope — A party beneficiary of fraud played upon the Trial Court and the High Court would not be entitled to invoke discretionary jurisdiction of High Court under Section 115 CPC. (Para 9)
(C) Civil Procedure Code, 1908, Or. IX, R. 9 r/w Sec. 151 — Restoration of suit applications — Praying for — Dismissed for default, by one and the same order — On basis of an application praying to decide all the three applications together — Proper. (Paras 8 to 10)
(D) Civil Procedure Code, 1908, Or. XXIII, R. 1 — In terms of — It is the privilege of the plaintiff alone to withdraw the plaint at any stage of proceedings — It is well settled that in a suit for plaintiff and would be entitled to decree in his favour, if it is, established that he has the share in the properties — Before dismissing the suit as withdrawn, trial Court having not issued notice to plaintiff or his legal representatives/heirs — More particularly when advocate who had filed the suit for partition was substituted by another advocate without obtaining the consent from the advocate, who was earlier representing the deceased — No attempt was made by trial Court to verify as to what prompted the original plaintiff to withdraw the suit — Dismissal of suit for partition as withdrawn — Held — A grave error of trial Court. (Para 10)
¼v½ nhokuh izfd;k lafgrk] 1908] vkns'k 22 fu;e 1] 3 vkSj fgUnq mRrjkf/kdkj vfèkfu;e] 1956] /kkjk 6] 8 vkSj ifjf'k"V R3 vkns'k 22 CPC ds vUrxZr ;g fufgr gS fd tc ,d ek= oknh dk LoxZokl gks tk, vkSj okn nk;j djus dk vf/kdkj fo|eku jgs rks bl lEcU/k esa U;k;ky; esa nk;j izkFkZuk i= ds vk/kkj ij mlds dkuwuh okfjl dks ml okn esa i{kdkj izLFkkfir fd;k tk,xk vkSj og okn dh iSjoh djsxk & e`rd dh ,dek= yM+dh mldh dkuwuh okfjl Fkh tks okn dks pykus dh vf/kdkjh fgUnq mRrjkfèkdkj vf/kfu;e] 1956 dh /kkjk 6 vkSj 8 ds ifjf'k"V ds vk/kkj ij FkhA
¼izLrj 7½
¼c½ nhokuh izfd;k lafagrk] 1908] /kkjk 115 ds vUrxZr i;Zos{kh; {ks=kf/kdkj dk foLrkj & ,d i{kdkj tks dVdj.k ds }kjk fopkj.k U;k;ky; esa ykHkkfUor gqvk Fkk rks /kkjk 115 CPC ds rgr mPp U;k;ky; vius foosdk/khu {ks=kf/kdkj dk iz;ksx djus dk vf/kdkjh ugha gksxkA ¼izLrj 9½
¼l½ nhokuh izfd;k lafgrk] 1908] vkns'k IX fu;e 9 lifBr /kkjk 151 ds vUrxZr okn dks lkfcd uacj ij ykus gsrq izkFkZuk i= nk;j fd;k x;k tks vne iSjoh esa ,d gh vkns'k ds vUrxZr fujLr gks x;h & fu.kZ; esa dgk x;k ^,d gh izkFkZuk i= ds vkèkkj ij lHkh rhuksa izkFkZuk i=ksa dks fuf.kZr fd;s tkus dh izkFkZuk mfpr FkhA
¼izLrj 8 ls 10½
¼n½ nhokuh izfd;k lafagrk] 1908 vkns'k XXIII fu;e 1 ds vUrxZr ;g dsoy oknh dk vf/kdkj gS fd og fdlh Hkh Lrj ij okn i= dks okfil ys ldrk gS & ;g izfrikfnr gS fd okndkjh ds fdlh okn esa ;fn og fMdh dk vius fgr esa ikus dk vfèkdkjh gS vkSj ;g r; gks tkrk gS fd lEifRr esa mldk fgLlk gS & okfil ysus ds dkj.k okn dks fujLr djus ls iwoZ fopkj.k U;k;ky; }kjk mls vFkok mlds okfjlku dks uksfVl fuxZr fd;s tkus dh t#jr ugha gS & fo'ks"k :i ls vf/koDrk ftl ds }kjk okn&rdlhe nk;j fd;k x;k Fkk ml esa ifjLFkkiu fdlh vU; vf/koDrk }kjk fcuk iwoZ vf/koDrk dh lgefr fy, tks fd e`rd dk izfrfuf/kRo dj jgk Fkk] fd;k x;k Fkk & fopkj.k U;k;ky; }kjk bl ckr dh iqf"V fd;s tkus dk dksbZ iz;kl ugha fd;k x;k fd ewy oknh }kjk okn okfil ysus gsrq dSls rRij gqvk Fkk & okilh ds dkj.k okn dk fujLr fd;k tkuk fopkj.k U;k;ky; dh xaHkhj =qfV FkhA ¼izLrj 10½
J.M. Panchal, J. — Leave granted.
2. This appeal, by special leave, is directed against judgment dated March 29, 2007 rendered by the High Court of Madhya Pradesh, Jabalpur, Bench at Gwalior in Civil Revision No. 122 of 2005, by which order dated May 5, 2005, passed by the learned First Additional District Judge, Gwalior in MJC No. 3 of 2004 allowing the application filed by the respondent No. 1 under Order IX Rule 9 read with Section 151 of the Code of Civil Procedure is confirmed and order dated December 16, 2003 in MJC No. 35 of 2001 (new number 29 of 2003) dismissing the said case for default as well as order dated August 23, 2001 dismissing MJC No. 25 of 1998 for default are set aside and Civil Suit No. 3A of 1996, which was dismissed as withdrawn on February 28, 1997, is restored.
3. The relevant facts emerging from the record of the case are as under :
Late Mr. Shankar Lal, who was father of the respondent No. 1, filed Civil Suit No. 11 of 1955 for partition of the joint properties. The said suit was decreed on July 10, 1978. Feeling aggrieved, the appellant preferred First Appeal No. 60 of 1978 before the High Court. The learned single Judge of the High Court set aside the decree passed by the trial court and remanded the matter to the trial court for fresh decision vide order dated September 30, 1991. Against the order of remand, LPA No. 32 of 1991 was filed by father of the respondent No. 1. On February 24, 1997 an application was filed by late Mr. Shankar Lal who was father of the respondent No. 1 for withdrawal of LPA No. 32 of 1991. The LPA was dismissed as withdrawn on the same date, i.e., February 24, 1997. In the year 1996 Civil Suit No. 11 of 1955 filed for partition of the Joint properties was given new number as 3A of 1996. On February 28, 1997 another application was filed for withdrawal of Civil Suit No. 3A of 1996 by the father of the respondent No. 1. In view of the contents of the said application the Civil Suit was also dismissed as withdrawn on the same date, i.e., on February 28, 1997. On August 11, 1998, father of the respondent No. 1 expired. The respondent No. 1 filed an application on September 2, 1998 for recalling the order dated February 24, 1997, passed in LPA No. 32 of 1991. There was delay in filing the application seeking recall of order dated February 24, 1997. Therefore, another application was filed for condonation of delay. The respondent No. 1 alleged in her application that the application dated February 24, 1997, purportedly filed by her late father, for withdrawal of Letters Patent Appeal, in fact did not bear the signature of her father and, thus, signature of her father was forged. It was mentioned in the application that Mr. J.P. Sharma, advocate, had noted his appearance on behalf of her father in Civil Suit No. 3A of 1996 subsequently without seeking no objection certificate from the previous counsel, who had filed the plaint, and thereafter filed application for withdrawal of LPA, which was illegal and, therefore, the order dated February 24, 1997 disposing of the LPA as withdrawn should be recalled. The High Court heard the learned counsel for the parties and by order dated January 10, 2005 condoned the delay in filing the application seeking recall of order dated February 24, 1998 by which the LPA 32 of 1991 was dismissed as withdrawn and allowed the application of respondent No. 1 for recalling order dated February 24, 1997. While allowing the application filed by respondent No. 1 the High Court observed that a fraud was played upon the Court and directed the Registrar of the Court to file a complaint against Advocate Mr. J.P. Sharma and also against Advocate Mr. S.C. Goyal, who had identified the signature of late father of the respondent No. 1. The High Court also directed the Registrar to initiate criminal proceedings against the present appellant who was supposed to be the beneficiary of the act of forging for initiating criminal proceedings by filing a compla
