Trilok Singh v. Inder Pal & Ors.

1. The present appeal is directed against an order of the learned Single Judge dated 12.03.2013, dismissing I.A. No.14076/2007. By that application, the plaintiff - who died during the pendency of appeal - has sought for recall of the order dated 23.03.2007 by which the suit had been withdrawn.

2. The brief facts necessary for disposing off the present appeal are that the plaintiff approached the Court seeking a declaration that registered gift deed dated 5.5.2004 in favour of his grand sons arrayed as second and third respondents was invalid and not enforceable. He also sought consequential reliefs such as perpetual injunction. 2013:DHC:3345-DB FAO (OS) 313-13 Page 2 Apparently, after the execution of the gift deed, the second and third defendants had further transferred the property through a registered sale deed dated 11.04.2005. The subsequent purchaser was also arrayed as a party.

3. During the pendency of the suit, the plaintiff who was of advanced age apparently moved an application - I.A.3425/2007 seeking to unconditionally withdraw the proceedings. By an order dated 23.03.2007, the Court accepted the application and recorded unconditional withdrawal of the suit in the following terms: - “This is an application under Order 23 Rule 1 of the Code of Civil Procedure filed on behalf of the plaintiff for unconditional withdrawal of the suit. The plaintiff as well defendant No.1 is present in court. The suit is dismissed, as prayed.”

4. On 17.11.2007, the plaintiff again approached the Court. This time alleging that fraud had been practised upon him by counsel which had resulted in unwarranted withdrawal of the suit. Notice was issued on the application. Subsequently, during the pendency of I.A.14076/2007, the plaintiff died. Legal representatives were substituted by the Court. The learned Single Judge dismissed the application seeking recall of the earlier order recording withdrawal. The material portion of the impugned order reads as follows: -

5. It is urged by the appellant that the impugned order discloses grave errors. Learned counsel pointed out that there was no cause for the counsel to be substituted only for the purpose of moving an application for withdrawal of the suit. In addition, argued counsel, at least 50% of the property sought to be gifted was also the subject matter of a gift made in 1982. He relied upon paragraph 10 of the plaint in support of this submission. Counsel emphasized the point at the time when the application for recall was made and the deceased plaintiff Trilok Singh was alive and in fact he had affirmed the affidavit in support of that application.

6. This Court has considered the relevant averments in the amended suit - which was pointed out during the hearing - as well as the material documents. Paragraph 10 of the suit generally avers about some gift which was unconditionally accepted. There are, however, no averments suggestive of the fact that the property was ever the subject matter of any valid registered gift deed. There is also mention of a memorandum of family settlement - in paragraph-15 & 16. Here too, there are no particulars as to when such family settlement was arrived at. Paragraph 17 of the suit alludes to FAO (OS) 313-13 Page 5 a partition deed of 22.01.2001 between the plaintiff and the first defendant. Here again, there is no express averment that such partition deed was registered. The materials on record also disclose that on the date when the Court recorded withdrawal of the suit, i.e., on 23.03.2007, the plaintiff and the first defendant were present. The application filed by the plaintiff does not contest this fact. The material averments alleging fraud are in paragraphs 5 and 7 of the application; they are extracted below: -