C.R. No.3629 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No.3629 of 2010 Date of Decision: 29.09.2010 Yashpal and another .……Petitioners Versus Smt. Sheela Wati and others ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. R. M. Singh, Advocate for the petitioners. Mr. Jagat Singh, Advocate for respondent No.1. L. N. MITTAL, J (ORAL) Defendant Nos.2 and 3 have come up by way of instant revision petition under Article 227 of the Constitution of India to challenge order dated 29.04.2010 Annexure P-3 passed by learned Civil Judge (Junior Division), Palwal thereby dismissing application Annexure P-1 moved by defendant Nos.2 to 5 under Order 7 Rule 11 of the Code of Civil Procedure (in short, CPC) for rejection of the plaint instituted by respondent No.1-plaintiff-Sheela Wati. Defendant Nos.2 to 5 in their application Annexure P-1 alleged that plaintiff had earlier filed civil suit regarding the same subject matter and the same was withdrawn without permission to file fresh suit regarding the same subject matter. Consequently, the instant suit is barred by Order 23 Rule 1 (4) CPC and, therefore, the plaint is liable to be rejected. Plaintiff by filing reply Annexure P-2 opposed the aforesaid application. It was pleaded that previous suit was got C.R. No.3629 of 2010 2 dismissed as withdrawn by playing fraud on her by her general power of attorney holder and by grand-father of defendant Nos.2 to 5. It was also pleaded in the plaint that there were two cross suits i.e one by the plaintiff herein and one by defendant No.1-Satya Wati (since deceased and represented by legal representatives) and in view of compromise, both the said suits were dismissed as withdrawn as there was understanding between the parties that they would get half share each in the suit property. Learned trial Court vide impugned order Annexure P-3 dismissed the application Annexure P-1 moved by defendant Nos.2 to 5. Feeling aggrieved, defendant Nos.2 and 3 have filed the instant revision petition. I have heard learned counsel for the parties and perused the case file. Learned counsel for the petitioners contended that plaintiff-respondent No.1 herself made statement on 15.09.1999 for withdrawing the previous suit and accordingly, the said suit was dismissed as withdrawn vide order dated 15.09.1999 and consequently the instant suit is barred by Order 23 Rule 1(4) CPC. On the other hand, learned counsel for respondent No.1 plaintiff contended that there was compromise between plaintiff and defendant No.1 pursuant to which both of them withdrew their respective suits filed earlier and as per compromise, both parties were to get half share each in the suit property and thus fraud was played on the plaintiff for withdrawal of her previous suit. Learned counsel for respondent No.1 has relied on judgment of Supreme Court in the case of S.P.Chengalvaraya Naidu versus Jagannath, C.R. No.3629 of 2010 3 1994 (2) Civil Court cases 131 and contended that judgment and decree obtained by fraud is nullity and can be challenged in any Court and at any stage of litigation and even in collateral proceedings. I have carefully considered the rival contentions. There is no dispute that plaintiff had earlier filed suit No.454 of 92 regarding same subject matter and cause of action. There is also no dispute that the plaintiff by making statement in the Court on 15.09.1999 withdrew the said suit and accordingly the said suit was dismissed as withdrawn vide order dated 15.09.1999. The plaintiff had even engaged a new counsel in the said suit while withdrawing the same on 15.09.1999. Consequently, contention of counsel for respondent No.1-plaintiff that plaintiff being illiterate was made to withdraw the said suit cannot be accepted. The plaintiff had the advantage of the advice of her counsel in the previous suit and also of the advice of the second counsel engaged by her in that suit before withdrawing the same. Consequently, the plea of illiteracy cannot be accepted. As regards alleged fraud, suffice to mention that if compromise had been effected between the parties leading to withdrawal of the previous suit, it would have been mentioned while withdrawing the suit. However, no mention of any compromise was made while withdrawing the previous suit. It was not stated that the suit was being withdrawn on account of compromise. On the contrary, if there had been any such compromise, the same should have been got recorded in the previous suit under Order 23 Rule 3 CPC. However, no such compromise was got recorded in the previous suit. On the contrary, it was pure and simple withdrawal of C.R. No.3629 of 2010 4 the previous suit. Consequently, the instant second suit is barred by unambiguous provision of Order 23 Rule 1(4) CPC. Since the instant second suit is barred by the aforesaid legal provision, the plaint is liable to be rejected under Order 7 Rule 11 CPC. Learned Trial Court has illegally refused to exercise jurisdiction which vested in it. The impugned order is completely illegal and unsustainable and suffers from jurisdictional error warranting interference in exercise of revisional jurisdiction. For the reasons aforesaid, the instant revision petition is allowed. Impugned order Annexure P-3 passed by the trial Court is set aside and application Annexure P-1 moved by defendant Nos.2 to 5 is allowed and the plaint instituted by the plaintiff respondent No.1 is rejected. ( L. N. MITTAL ) JUDGE 29.09.2010. A. Kaundal