Champa Devi v. Param Ved Goel

1. This petition under Article 227 of the Constitution of India impugns the order of the court below dated 19.7.2014 by which the application of the petitioner/plaintiff for restoration of the suit which was withdrawn by her on 23.7.2007 has been dismissed after recording of evidence of the petitioner/plaintiff with respect to whether the petitioner had or had not given the consent.

2. The court below records that though the case of the petitioner/plaintiff is that she is an illiterate lady and she did not know that she is appearing in court and making a statement for withdrawal of the suit but the petitioner/plaintiff 2014:DHC:6594 cannot be believed inasmuch as admittedly she asked one advocate Mr. M. Sultan Siddiqui to appear in her case and the said advocate was not summoned in evidence by the petitioner/plaintiff to show that she did not ask her advocate Mr. M. Sultan Siddiqui to withdraw the suit. The court below also notes that earlier a suit filed for the same property by the plaintiff was allowed to be withdrawn subject to payment of costs of Rs.2000/- and thereafter the subject suit was filed. In fact the petitioner/plaintiff personally appeared before the judge and recorded statement in court for withdrawal of the suit. The presiding officer of the court hence allowed the petitioner/plaintiff to withdraw the suit in terms of her statement.

3. The relevant observations made by the court below for dismissing of the application read as under:- “ A perusal of the entire testimony of AW[1] revealed that she deposed contradictory facts in her examination in Chief and cross examination. She categorically denied to have made any statement before the Ld. Predecessor which is contradictory to the records. The order dated 23/07/2007 passed by Ld. Predecessor clearly demonstrate that the statement of the applicant / plaintiff was recorded by the Ld. Predecessor on 23/07/2007 during Court proceedings qua the withdrawal of the suit. Therefore, the testimony of AW[1] is not reliable in this regard. The applicant / plaintiff also got examined Smt. Neelam Kaler who deposed by way of affidavit Ex. AW[2]. She also deposed about engaging Sh. M.S. Siddiqui, Advocate for the purpose of adjournment before date of hearing i.e. 26/07/2007. During her cross-examination AW[2], could not remember the name of the Counsel who had prepared her affidavit Ex. AW[2]. She admitted that affidavit Ex. AW2/A was already prepared before her visit with said Counsel. She had not met the Counsel prior to preparation of the affidavit, Ex. AW1/A. She further admitted that the affidavit Ex. AW1/A got prepared by the applicant / plaintiff when she visited her. It is noteworthy that the applicant / plaintiff alleged collusion & connivance between her Counsel and the defendant and also claimed her illiteracy and ignorance to be the reason for making application for withdrawal of the suit, however not a single evidence was led by the applicant / plaintiff to substantiate any such collusion and connivance. Even she did not get Sh. M.S. Siddiqui, Advocate examined as witness in support of her contentions. No plausible explanation could be furnished by the applicant / plaintiff for nonexamination of Sh. M.S. Siddiqui, Advocate, who was the material witness to establish her contentions.

8. In the afore-discussed facts and circumstances, I am of the considered opinion that the evidence led by the applicant / plaintiff could not substantiate her stand. Her contentions are found to be contrary to the judicial record. Accordingly, the application Under Section 151 CPC dated 21/08/2007 seeking restoration of the suit is wholly devoid of merit and is accordingly dismissed. File be consigned to Record Room after due compliance.” (underlining added)

4. I completely agree with the aforesaid observations and it is clear that the plaintiff is deliberately harassing the defendant. The fact that petitioner has no case becomes clear from paras 3 to 5 of the preliminary objections in the written statement and which read as under:-

5. Of course, this court has not to see the merits of the case while deciding the case of withdrawal however some prima facie view with respect to the existence of malafides have to be seen and therefore I am of the opinion that petitioner/plaintiff actually had even no case on merits and she would have for some reason known to her withdrawn the suit by recording her statement before the presiding officer of the court and which is therefore not to be disbelieved.

6. Learned counsel for the petitioner argues that every day gives a fresh cause of action with respect to suit for possession by placing reliance upon a judgment delivered by this Court in the case of Mahesh Chand Vs. Sumnesh Kumar Chaturvedi CM(M) 455/2014 decided on 18.11.2014, however, this judgment has no application in the facts of the present case where the defendant in the suit claimed title from the year 1989 and in fact predecessors of defendant/respondent claimed title from 1972. The subject suit was filed in the year 2007 (even the earlier suit was filed in 2005) was therefore barred by Article 65 of the Limitation Act,1963 read with Section 27 of the Limitation Act which provides for extinguishing of title after a period of 12 years.

7. Dismissed.

DECEMBER 01, 2014 VALMIKI J. MEHTA, J. ib