ORDER

The present Miscellaneous Civil Case is filed for restoration of First Appeal No.264 of 2003 under section 151 CPC.

2. Facts of the case are that one Shrimant Malharrao Holkar - father of the applicant and respondents No.12 & 13 herein filed a suit being Civil Suit No.38A of 2002 (old No.15A of 1973) in the Court of District Judge, Indore for a declaration that the suit property as described in Schedules A,B,C,D & E of the plaint was the ancestral Joint Hindu Family Property in which he had a right by birth and that he was entitled to succeed to the same being the sole surviving co-parcener member thereof. The relief of possession of the entire property held by late Maharaja Yashwant Rao Holkar in his capacity as Ruler of Indore State was also sought after annulling the creation of various Trusts and transfer of properties made to the said trusts. A further declaration was also sought that declaration of Princess Usha Raje as successor Ruler of Indore State by the Government of India on 3rd May, 1962 and giving her the power to transfer the properties, are illegal and not binding on him. During the pendency of the said suit, the plaintiff Shrimant Malharrao Holkar expired leaving behind his widow Smt. Mrinalini Raje Holkar, applicant and respondents No.12 & 13 being the sons as his legal heirs and representatives. The trial Court allowed the said application being IA No.82 and rejected the plaint of the Civil Suit No.38A of 2000 (Old No.15A of 1973) on the ground that the right to sue did not survive. The applicant herein alone being aggrieved, filed Civil First Appeal No.264 of 2003 in the High Court of Madhya Pradesh, Indore Bench. The applicant filed an application being No.1193 of 2008 under Order XXIII, Rule 1 of the CPC for withdrawal of the Civil First Appeal No.264 of 2003. The High Court allowed the same. The High Court held that the appeal stood dismissed as withdrawn. "As a necessary consequence, all interim orders passed in the appeal are vacated." The respondents No.12 & 13 herein being the sons of the original plaintiff and younger brothers of the applicant herein being aggrieved, filed an application being MCC No.131 of 2008 under Order XLI, Rule 21 r/w Rules 4, 8, 33 & Section 151 of the CPC for recalling the order dated 30.01.2008 permitting withdrawal of the appeal and to restore the appeal to its original file and be decided after hearing the applicants. The High Court by its impugned judgment & order allowed the same and recalled the order dated 30.01.2008 passed in C.F.A. No.264 of 2003 and restored the same to its original file for its disposal in accordance with law. I.A. No.11680 of 2008 was filed by the applicant for withdrawing IA No.1193 of 2008 dated 29.01.2008. IA No.11499 of 2008 was filed by the respondent No.12 & 13 for withdrawal of FA No.264 of 2003. SLP No.205 of 2009 was filed by Princess Usha Raje in the Hon'ble Supreme Court. An order was passed in SLP (C) No.205 of 2009 setting aside impugned order dated 09.09.2008.

3. Counsel for the applicant submits that the applicant filed the present petition for restoration of First Appeal No.264 of 2003 as respondents No.1 to 5 have practiced fraud on the applicant by making him believe that he would be paid his share once the cases filed by him against respondent No.1 to 5 are withdrawn only to resile from their promise and the applicant has been cheated.

It is argued that though the order of restoring the first appeal at the instance of respondents was set aside by the Hon'ble Supreme Court in Special Leave to Appeal (Civil) No.205 of 2009 by the order dated 16.04.2010, but the present application is maintainable in view of the observation made by the Apex Court.

He has emphatically relied on the following observation of the order of the Apex Court which is extracted as under:-

"Needless to say that disposal of special leave petition in the manner indicated above shall not prejudicially affect the rights of either parties."

4.