Civil Revision No.2630 of 2010(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.2630 of 2010(O&M) Date of Decision: March 16, 2011 Mahender .....Petitioner v. Rajbir and others .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Saurabh Bajaj, Advocate for the petitioner. Mr.Harkesh Manuja, Advocate for the respondent. ..... RAM CHAND GUPTA, J. The present revision petition has been filed under Article 227 of the Constitution of India for setting aside impugned order dated 1.2.2010, vide which application filed by present petitioner for restoration of Civil Suit No.15 of 2003 pending before learned Additional Civil Judge, Senior Division, Sonepat, has been dismissed with a prayer for acceptance of present revision petition and for allowing the application for restoration of the suit filed by the petitioner. I have heard learned counsel for the parties and have gone through the whole record carefully including the impugned order passed by learned trial Court. Facts relevant for the decision of present revision petition are that a suit for possession with a consequential relief of declaration was filed by present petitioner-plaintiff alongwith his sister, Smt.Krishana for possession that civil court judgment and decree dated 20.7.1991 passed in Civil Suit No.877 of 18.5.1991 titled `Rajbir etc. v. Murti' is null and void and not binding against the interest of the plaintiffs. During pendency of the suit, an application dated 5.6.2006 was filed by present petitioner requesting for withdrawal of the suit to the extent Civil Revision No.2630 of 2010(O&M) -2- of his share. On the same day, he also got recorded his statement before the Court and, however, the case was adjourned to 28.8.2006 by learned trial Court for consideration on the application. Vide order dated 23.10.2006, in view of the statement made by present petitioner in the application, suit was dismissed as withdrawn qua present petitioner-plaintiff No.1.Proceedings continued in the suit qua the other plaintiff till 16.9.2008, when the present application was moved for withdrawal of admission dated 5.6.2006 and for requesting for restoration of the suit, which was dismissed by learned trail Court by observing as under:- “ With due regards to the rival contentions, I find no merit in the application. On perusal of file, it is observed that plaintiff No.1 Mahender had moved an application order dated 5.6.2006, duly signed by him and counter signed by his counsel for withdrawal of suit to the extent of his share. On the same day, he had got recorded his statement before the Court and case was adjourned to 28.8.2006 and then 23.10.2006, for consideration on validity of statement. My Ld. predecessor vide his order dated 23.10.2006, ordered that in view of plaintiff No.1's statement the suit of the plaintiff No.1 will not proceed against the defendants and the suit of the plaintiff no.2 will proceed against defendants. Thereafter, proceedings continued till 16.9.2008 when the present application was moved for withdrawal of admission dated 5.6.2006 on the ground that defendants no.1 and 2 by playing fraud upon plaintiff no.1, had obtained signatures on blank papers and used the same for making application dated 5.6.2006 and that statement recorded before court was also obtained erroneously by the defendants under a conspiracy, so the same are not binding on the plaintiff no.1. The application under consideration was moved at the stage of evidence for the plaintiff. This court is convinced that the conduct of plaintiff no.1 is nothing but our effort on his part to undone a thing which has already been done. Had there been any force in the claim of fraud of the plaintiff No.1/ applicant, his application would not have had been counter Civil Revision No.2630 of 2010(O&M) -3- signed by his advocate. Not only this, in case of fraud, he should have had also pointed a finger against his counsel also instead of just referring to the role of defendants no.1 and 2. The falsity in the applicant's claim is also evident from the fact that he had made statement before the court and the same is presume to be recorded without any fraud, force or coercion or influence of any party including defendants. The applicant has not been able to explain as to why he did not raise his grouse against the defendants before the Court and why he waited for almost two years to make such a frivolous application.” It has been contended by learned counsel for the petitioner that during the pendency of the suit, a compromise was effected between him and his brothers and they had undertaken to give him his due share subject to withdrawal of the suit and hence, under bona fide belief he has withdrawn the suit on his behalf. However, as is clear from the aforementioned order passed by learned trial Court, no such plea was taken by present petitioner while filing application for withdrawal of the suit. He has also not made any such plea in his statement given before the Court. Rather, withdrawal of the suit was unconditional. Hence, in view of unconditional withdrawal of the suit, it cannot be said that petitioner is having any right to get the same revived. In view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned trial Court in passing the impugned order and that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. Hence, the present revision petition is, hereby, dismissed being devoid of any merit. 16.3.2011 (Ram Chand Gupta) meenu Judge