Full Text
C.R.P. 16412008 and CMNo. 1491712008
CHAMPA DEVI ..... Petitioner
PARAN VED GOEL
I have heard the counsel for the parties.
The petitioner had filed a suit for possession in respect of some property which she claimed to be owned by her. The suit was filed against the respondent herein. In the suit the respondent - defendant filed his written statement denying the claim of the petitioner - plaintiff that she was the owner and claimed himself to be the exclusive owrrer of the suit property. When the case was at the stage of filing of replication, an application came to be moved on behalf of the petitioner - plaintiff for withdrawal of the suit in which it was alleged that since she was not having title documents in her possession she may be permitted to withdraw her suit. The trial Court accordingly dismissed the suit as withdrawn on 23'd July,
ORDER
2007. Thereafter on 21't August, 2008 she moved an application before the trial Cour-t for restoration of the suit. That application had been rejected by the learned trial Court vide impugned order dated 11tl'August, 2008. A perusal of the impugned order shows that the restoration of the suit was being sought by the petitioner - plaintiff on the ground that withdrawal was as a result of fraud and collusion played upon her by her counsel and the opposite side. The learned trial Court, however, had rejected the plea of fi'aud and collusion on the ground that the plaintiff s allegations had not been substantiated. c.R.P. 164/2008 I re pase I of[3] 2011:DHC:10255:/ fo Feeling aggrieved the petitioner - plaintiff has filed the present revision petition. The only submission made on behalf of the petitioner - plaintiff before this Court is that without giving an opportunity to the petitioner to substantiate her claim that a fraud had been played upon her the application for restoration of the suit could not have been rejected. Learned counsel for the respondent - defendant, on the other hand, submitted that only aim of the petitioner in filing the present petition is to continue to harass him and that is evident from the fact that on an earlier occasion also when a suit based on title was filed by the petitioner - plaintiff against the respondent - defendant for injunction the same was withdrawn. It is also submitted that even while rejecting the application for restoration of the suit learned trial Court has taken into consideration the respective claims regarding their title and has found that the title of the petitioner - plaintiff was not clear. After having heard the counsel for the parties, I am of the view that this petition deserves to be allowed'and the impugned order of the trial Court dismissing the petitioner's application for restoration of her suit is liable to be set aside since that application was rejected without giving any opportunity to the petitioner - plaintiff for substantiating her allegation of fraud and collusion. Without giving that opportunity the learned trial Court was not justified in coming to the conclusion that the allegations of fraud and collusion had not been substantiated. This petition is accordingly allowed and the impugned order is set aside. The matter is remanded back to the trial Court for deciding the petitioner's application afresh after giving both the parties opportunity to adduce the evidence in support of their respective contentions on the prayer of the petitioner - plaintiff for recalling of the order of withdrawal of the suit on the ground of fraud and collusion. It is, however, made clear that the trial Court shall decide the matter afresh in accordance with law uninfluenced by the filing of the present petition since this Court has not gone into the merits of the allegations of fraud and, c.R.P. 164/2008 pase 2 of[3] lc*- 1,[4] collusion which have been raised by the petitioner. Parties shall now appear before the trial Court on 1ltl' July, 201 | at[2] p'm. when further appropriate orders shall be passed by the trial Court.,f MAY 25,2011 sh c.R.P.164/2008 /a page 3 of[3]