C.R. No. 813 of 2006 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Date of Decision: July 22, 2009 1. C.R. No. 813 of 2006 Gurdev Kaur …..Petitioner Vs. Gurdas Singh and another …..Respondents 2. C.R. No. 2801 of 2008 Balbir Singh …..Petitioner Vs. Gurdev Kaur …..Respondent CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI. -.- Present:- Mr. Animesh Sharma, Advocate for the petitioner in CR No.813 of 2006 and for the respondent in C.R. No. 2801 of 2008.. Mr.K.S. Cheema, Advocate for the respondents in CR No.813 of 2006 and counsel for the petitioner in CR No.2801 of 2008. C.R. No. 813 of 2006 [2] -.- M.M.S. BEDI, J. Following sequence of events appears to be necessary for proper understanding the facts of the present revision petition:- The respondent- Gurdas Singh now represented through his son Balbir Singh had filed a suit for declaration that he and his son Balbir Singh are owners in possession of land in dispute and sought an injunction restraining defendant- petitioner Gurdev Kaur from interfering in their possession besides challenging the validity of the sale deed dated June 10, 1992. When the said suit was at final stage fixed for the rebuttal evidence of the plaintiff Gurdas Singh, he made a statement by engaging a new counsel Adarsh Sharma, appearing in the Court on October 4, 1995 and made a statement that he did not want to proceed with the case and it should be dismissed as withdrawn. In view of the said statement of Gurdas Singh on oath and his counsel Sh. Adarsh Sharma, the suit of the plaintiff- respondent was dismissed as withdrawn on October 4, 1995. On November 3, 1995, Gurdas Singh filed an application under Section 151 CPC for recalling and setting aside the order dated October 4, 1995 dismissing his suit as withdrawn on October 4, 1995, on the ground that he had faith in Baba Singh, Buta Singh and Tarsem Singh but about a month prior to the filing of application, Buta Singh and Gurdev Kaur informed him that all the sale deeds which he had challenged had been cancelled and he had become owner of the property. He, having blind faith in Buta Singh and Gurdev Kaur came to the Court at their instance. They got his thumb impression on C.R. No. 813 of 2006 [3] some papers telling that the suits are to be decided in his favour. Gurdev Kaur in connivance with Buta Singh practiced a fraud upon the Court and Gurdas Singh. The respondents claimed that he never engaged Sh.Adarsh Sharma, Advocate, as his counsel nor he had authorised him to file any application on his behalf, as such he prayed for recalling and setting aside of the order dated October 4, 1995 whereby his suit was dismissed as withdrawn. The petitioner contested the application contending that the application has not been filed by Gurdas Singh rather some other person misrepresenting him as Gurdas Singh had filed the application. On merits, it was averred that the respondent had already sold his land in favour of Gurdev Kaur as such he is not the owner of the property. He had voluntarily made a statement in the case that he wanted to withdraw his suit. The Civil Judge (Senior Division), Hoshiarpur framed following issues:- 1. Whether there are sufficient grounds to set aside and recall the court order dated 4.10.1995? OPP 2. Relief. After permitting parties to lead evidence, he dismissed the application holding that he has failed to prove fraud played upon him as such there was no ground to recall or set aside the order dated October 4, 1995 which was passed on the basis of the statement of respondent for withdrawal of the suit. The order dated February 8, 1999 was challenged by filing C.R. No. 5020 of 1999 which was disposed of on January 18,2000 by passing the following order:- C.R. No. 813 of 2006 [4] “Disposed of with the observations that let the petitioner may file appeal/ revision against the order dated 4.10.1995, according to law.” The petitioner filed an appeal against the order dated October 4, 1995 in the Appellate Court. The appeal was allowed by Additional District Judge, Hoshiarpur vide order dated October 21, 2005, and the order dated October 4, 1995 was set aside, by taking into consideration the statements of 9 PWs examined by the respondent and the 7 witnesses examined by the defendant- petitioner, as on the date when appeal was allegedly withdrawn both the parties have completed recording of entire evidence and the case was fixed for rebuttal evidence for November 9, 1995 but a month prior to the date of hearing, the suit of the plaintiff- respondent was dismissed as withdrawn by pre-poning the date of hearing. The merits which were considered by the Appellate Court are not of much relevance but it will be important to observe that the following circumstances weighed with the Court while setting aside the order of dismissal of suit as withdrawn on the basis of the statement of Gurdas Singh:- (i) Gurdas Singh and his son Balbir Singh were simpleton and the documents regarding their property had been executed on the basis of which gathering in the village was convened in which earlier documents were got nullified and custody of Gurdas Singh was entrusted to Baba Singh and Buta Singh. There was no power of attorney C.R. No. 813 of 2006 [5] executed by Gurdas Singh in favour of Bawa Singh authorizing him to execute sale deed regarding his land but his thumb impression was obtained and the sale deed had been prepared without any sale consideration. A fraud has been played upon the Court as Gurdas Singh was not in healthy state of mind for making any decision. (ii) It was observed that the lower Court ought to have rejected the application for withdrawal and should have permitted the plaintiff- respondent to contest his claim by appointing next friend on account of his unstability of mind so that the proceedings in the suit could be continued for his benefit. (iii) Baba Singh and Buta Singh had been entrusted with the custody of Gurdas Singh by various respectables of the village but Gurdas Singh had been abducted and was wrongly connived and forced to thumb marked certain documents with ulterior motive of grabbing the property of Gurdas Singh and his son Balbir Singh. (iv) Gurdas Singh and his son Balbir Singh being simpleton unable to understand their betterment was established by Dr.Manjit Singh who was examined as a witness regarding the mental C.R. No. 813 of 2006 [6] condition of Gurdas Singh and Balbir Singh. Their mental retardation was established by medical evidence. (v) Fraud had been played upon the Court in making Court believe that Gurdas Singh was of sound mind and was getting the application dated October 4, 1995 moved on his behalf for withdrawal of suit on a date which was not even the date fixed for hearing of the suit by a counsel purported to have been engaged. The Additional District Judge, Hoshiarpur vide order dated October 21, 2005 had set aside the order dated October 4, 1995 and remanded the case back to the trial Court to proceed in accordance with law. The order dated October 21, 2005 has been challenged by the defendant by filing this revision petition. It will be expedient in the interest of justice to observe here apprehensive of the fact that the opposite party might take the objection that the Additional District Judge did not have any jurisdiction to hear the appeal against an order which might not have been appealable, as an abundant caution, a separate revision petition No.2801 of 2008 has been filed against the order dated October 4, 1995 dismissing the suit as withdrawn as well as the order dated February 8, 1999 dismissing the application for recalling the order dated October 4, 1995. As the subject matter of the revision petition C.R. No. 813 of 2006 [7] No.2801 of 2008 and CR No. 813 of 2008 are same both have been taken up together for adjudication. Counsel for the petitioner -Mr.Animesh Sharma (CR No.813 of 2006) and counsel for the respondents Mr.K.S. Cheema, (CR No. 813 of 2006) have been heard. Mr. Animesh Sharma, has vehemently contended that once the suit has been dismissed as withdrawn, no application lies for withdrawal of the “withdrawal order”. The only remedy available to an aggrieved person is to file a fresh suit. He placed strong reliance on the judgments of Smt. Raisa Sultana Beam and others Vs. Abdul Qadir and others, AIR 1966 All. 318 in which it has been held that under Order 23 Rule 1 (1) CPC, right to revoke the withdrawal is not justified as such the same cannot be permitted. Counsel contends that when plaintiff withdraws a suit he ceases to be a party and the Court ceases to have jurisdiction over his suit, thus becomes functus officio, therefore, nothing but a fresh suit can again invest the Court with jurisdiction over it. Withdrawal of the suit brings an end to the sit and no further proceedings can be taken in it. I have carefully gone through the said judgment. A perusal of the concluding para 12 of the said judgment indicates that a distinction has been drawn in a case in which a plaintiff never withdrew his suit and an another case in which he withdraw the suit but he wanted to revoke or withdraw the withdrawal. It was observed that in the former case the suit was never withdrawn at all and in the later case it was withdrawn but the withdrawal was sought to be revoked. The question that has been answered C.R. No. 813 of 2006 [8] in the case is regarding withdrawal which is subsequently revoked. In the said case, the Bench specifically observed that it was not concerned with the questions regarding fraud or whether on account of withdrawal by fraud, it could not be termed as withdrawal in the eyes of law. As the withdrawal order obtained by fraud was not subject matter of the said suit in Smt.Raisa Sultana Begam’s case (supra), the said judgment is not applicable to the facts of the present case. Counsel for the petitioner also placed reliance on the judgment of Jaideep Gupta and others Vs. Inder Chand Jain and others, 55 (1994) DLT 593. In the said case it was held that so long the Court is seized of the proceedings and the proceedings had not actually terminated, Court retains jurisdiction to pass an appropriate order and taken note of prayers made by the parties and cure the adverse consequences, flowing from the act of any party before it, if the same be capable of being cured without prejudice to the other side. In the said judgment it was held that dispensation of justice shorn of technicalities is the paramount consideration for adjudication of such matters. The said case did not deal with a case where fraud had been played on simpleton plaintiff as such the judgment of Jaideep Gupta’s case (supra) is also not applicable to the facts of the present case. Counsel for the petitioner also placed reliance on the judgment of Vijay Malik Vs. State of U.P. (Manu/U.P./1701/2007) decided on December 12, 2007, to contend that withdrawing of suit is a unilateral act to be done by plaintiff, it requires no permission or order of the Court and is C.R. No. 813 of 2006 [9] not subject to any condition and it becomes effective as soon as it is done just as a compromise does. I have carefully gone through the said judgment. Concluding part of the judgment in para 7 indicates that in the said case the plaintiff wanted to withdraw a civil suit in order to enable him to pursue the remedy of writ under Article 226 of the Constitution of India but it does not appear to be relevant for the decision of the present case as the element of fraud never arose in the matter of withdrawal of a suit. The ends of justice are adequately met after a fair trial, when both the parties are permitted to put- forth their pleadings and are given permission to lead evidence on the facts in issue by producing the relevant evidence in accordance with the rules of evidence. It is apparently clear from the facts of the present case that the plaintiff who was an old man has been held to be a simpleton person by a judgment passed by the Additional District Judge. His son Balbir Singh has also been a simpleton person. The fact that the suit filed by the plaintiff had reach at final stage and the case was fixed for rebuttal evidence of the plaintiff on November 9, 1995, the circumstance that the plaintiff being a simpleton person was made to engage a new counsel without getting a no objection certificate from the counsel who had persuaded the matter from the very beginning are the factors indicative that fraud was played on the Court. Court is required to be more cautious in the matters where the subjects seeking justice before it are mentally retarded simpleton persons or pardanashi ladies. When it is established that a fraud has been played on the Court, it vitiates all the proceedings and the judgment and decree obtained C.R. No. 813 of 2006 [10] by playing fraud on the Court is a nullity. It is established on the record that a fraud had been played on the plaintiff while obtaining his statement of withdrawal in the Court as such there does not appear to be any illegality in the order passed by the Court setting aside the order dated October 4, 1995 and directing the trial Court to proceed ahead with the case according to law by remanding the same. Without expression of any opinion regarding the maintainability of the appeal before the Additional District Judge, Hoshiarpur, it is sufficient to observe that rules are the hand maid of justice. The appeal seems to have been bonafide filed on the basis of the principle and directions given by the High Court exercising its supervisory powers and powers of revision on January 18, 2000. It is not necessary to determine as to whether the order dated October 4, 1995 could be challenged in appeal or in the revision because the plaintiff had availed both the remedies i.e. by filing an appeal before the District Judge as well as by filing a revision petition against the order dated October 4, 1995. The revision under Article 227 of the Constitution of India has also been filed as it has been held that a fraud has been played on the Court while recording the statement on October 4, 1995. The order passed by the Court dismissing the suit of Gurdas Singh as withdrawn being a result of the fraud played on the Court and the plaintiff, the C.R. No.2801 of 2008 deserves to be allowed and C.R. No. 813 of 2006 deserves to be dismissed. Ordered accordingly. Since Gurdas Singh has already died and is being represented by Balbir Singh, his Legal Representative, who also appears to be C.R. No. 813 of 2006 [11] simpleton, it will be the duty of the Court to take into consideration the said fact so that no fraud could be played during the pendency of the proceedings. Parties are directed to appear before the trial Court on August 22, 2009 from which date the trial Court will take up the proceedings from the stage where the suit existed on October 4, 1995. It is directed that the suit will be decided within a period of six months after the receipt of a certified copy of the order. In case the successor Court of the Court which had dismissed the suit has withdrawn is not traceable, Civil Judge (Senior Division) will take up the matter for adjudication of the case on merits. July 22, 2009 (M.M.S.BEDI) sanjay JUDGE