Mr.V.M.Issar, Advocate. v. SH. TINKU WADHWA & ORS. ......

1. This petition under Article 227 of the Constitution of India is indeed a very frivolous petition to say the least. This I am stating because admittedly the petitioner, who was the plaintiff in the trial court, got recorded his statement before the trial court on 20.10.2014 stating that he has settled all his disputes with the respondent no.1/defendant, and therefore he does not want to pursue the suit. Accordingly, the trial court vide order dated 21.10.2014 allowed the suit to be withdrawn. 2014:DHC:6431

2. The order passed by the trial court and the statement of petitioner which was recorded by the trial court read as under:- “CS No 680/2014 20.10.2014 Statement of Jasprit Singh S/o Late Sh. Pritam Singh, aged about 39 years, r/o 4/100, Subhash Nagar, Delhi On SA I am the plaintiff in the instant suit. I have settled the matter voluntarily with the defendant and my all grievances have been stand settled and I does not want to pursue the case anymore. I may be permitted to withdraw the present case as well as the contempt petition filed in this court. In this regard a joint statement of the parties have already been recorded which is Ex P-1. I shall withdraw, if any complaint which I have filed with the authorities i.e. Police, MCD etc. A letter dated 15.10.2014 issued by the MCD on the basis of the contempt shall also be withdrawn. CS No 680/2014 20.10.2014 Present: Plaintiff with Sh.Manish Kapur, ld counsel for the plaintiff. Defendant with Sh.Rakesh Wadhwa, ld counsel for the defendant. Advocate Sh Vikrant Bhardwaj, Local Commissioner, appointed by the court. The LC has filed its report. It is submitted by Local Commissioner that due to paucity of time he could not get the photographs prepared and he shall produce the said photographs tomorrow i.e. on 21.10.2014. The matter has been settled between the parties amicably. Statement of the plaintiff to this effect recorded separately. Put up for production of photographs by the Local Commissioner and for orders considering the statement of the plaintiff. CS No 680/2014 21.10.2014 Present: Advocate Sh.Vikrant Bhardwaj, LC appointed by the court. Photographs in execution of the commission filed. In view of the statement of the plaintiff regarding withdrawal of suit the present suit is disposed off as withdrawn. Order dated 20.10.2014 and 21.10.2014 be given dasti. File be consigned to record room.”

3. As per the spirit of the provision of Section 96(3) of the Code of Civil Procedure,1908 (CPC) read with Section 141 CPC, the impugned order being a consent order, cannot be challenged in a higher court. As per the prayer clause, the petitioner is only impugning the order of the court below dated 20.10.2014, actually it should be 21.10.2014, whereby the trial court passed an order allowing the suit to be withdrawn in terms of the statement recorded on 20.10.2014

4. Though counsel for the petitioner sought to argue that the petitioner has actually filed an application in the court below stating that the petitioner/plaintiff gave his statement under pressure and the court has only issued notices in that application for a particular date in January and not granted interim orders, I do not find any such order is challenged in the present petition under Article 227 of the Constitution of India, inasmuch as in the heading and also in the prayer clause, the order which is challenged is only the order dated 20.10.2014 (sic. 21.10.2014).

5. As already stated above, no challenge can lie against a consent order and there is no other challenge in this petition to any other order, and therefore this petition being wholly frivolous is dismissed with costs of Rs.10,000/- payable to the respondent nos. 2 & 3 within a period of four weeks from today.

VALMIKI J. MEHTA, J NOVEMBER 26, 2014 KA