Reportable

IN THE SUPREME COUR OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  1614   OF 2012 (Arising out of SLP (Civil) No.25388 of 2011)

Rattan Bai  & Anr.  ….Appellants

Versus

Ram Dass & Ors. ….Respondents

J U D G M E N T

Chelameswar, J.

Leave granted.

2. This appeal arises out of the final order dated 8th March, 2011  

of the Punjab and Haryana High Court in  Civil Revision No. 1075 of  

2011 under  Article  227 of  the Constitution  of  India.  By the said  

order, the High Court dismissed the Revision filed by the appellants  

herein.

3. Respondent Nos.1 to 3 herein instituted a Civil Suit No. RBT  

124/22.05.2006 on the file  of  Civil  Judge,  Senior  Division (S.D.)  

Jhajjar, against the two appellants herein and two others.

4. Respondents 4 to 7 herein are the legal representatives of one  

Kanta Bai, who died during the pendency  of the suit and the said  

Kanta Bai was one of the other two defendants in the suit.

5. Unfortunately, copy of the plaint is not available on record but  

it appears that the suit was filed for the specific performance of an  

agreement of sale of immovable property and for the possession of  

the said property.

6. The defendants (appellants herein) contested the suit.  They  

filed a written statement on 2.12.2006.  

7. On 18.12.2007,  an application  (Annexure  P-2)  came to  be  

filed purportedly on behalf of the three plaintiffs (respondents 1 to 3  

herein),  but  signed  only  by  respondents  1  and  3  alone.   The  

relevant portion reads as follows:-

“Aforementioned  titled  case  is  fixed  for  4.8.2010  for  defendants  evidence and in the afore-stated case the applicant  plaintiff has compromised with the defendant in the suit I have  neither any claim against the defendant nor I intend to continue  the suit.

 Therefore, it is prayed that file be summoned and the suit  on  behalf  my  self  plaintiff  no.3  be  dismissed  and  file  be  consigned, I will be highly grateful.”

The  application  was  accompanied  by  an  affidavit  of  the  third  

respondent  herein,  wherein  he  made  a  statement  that  he  had  

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compromised  the  suit  with  defendants  and  he  did  not  wish  to  

continue the suit, and, therefore the same be dismissed.

8. Annexure  P-3,  purportedly  a  vakalatnama in  favour  of  one  

Shri A.K. Saini, advocate in the above mentioned civil suit, came to  

be executed on the same day, i.e. 18.12.2007 by the respondents 1  

to 3.  However, it must be mentioned herein that Annexure P-2,  

application was signed by an advocate by name Shri Arun Kumar  

along with two plaintiffs mentioned above.

9. The  trial  court  did  not  pass  any  order  either  accepting  or  

rejecting the application. (Annexure P-2)

10. On  4.8.2010,  a  joint  statement  (Annexure  P-4)  of  first  

respondent  and the  above-mentioned advocate  Shri  Arun  Kumar  

allegedly representing respondents 1 and 3 herein was recorded by  

the Trial Court. The relevant portion reads as follows:-

“…….stated that we do not intend to continue with the suit and  withdraw the suit on behalf of plaintiff no.1 and 3.”

11. On   7.8.2010,  the  first  respondent  herein  gave  another  

affidavit (Annexure P-5) before the Trial Court. The relevant portion  

reads as follows:-

“1.   That above noted suit has neither filed by me nor  above noted suit bears my signatures.

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2.     That pertaining to the agreement to sell we were not  having  sufficient  funds  within  limitation  and  my  compromise  with Rattan Bai, Ram Phool took place in the year 1999.

3.      That in the afore-stated case I have neither furnished  any power  of  attorney  as  plaintiff  nor  any General  Power  of  Attorney has been given by me.

4. That in the afore-stated suit I have falsely been impleaded  as plaintiff and my signatures are also forged.

5. That  in  the  aforesaid  suit  I  have  neither  engaged  any  counsel  nor  purchased  any  stamp  nor  any  witness  has  been  produced by me on my behalf.  The entire proceedings in this  case carried out on my behalf are false and forged.”

12. In the background mentioned above, an application, Annexure  

P-7, came to be filed on behalf of the appellants herein. It does not  

contain  any  date.    But  in  the  opening  paragraph  of  the  said  

application  it is stated as follows:-

“That the above noted civil bearing no.124 of 2006 is pending in  this  Hon’ble  Court  and  the  same  is  fixed  for  hearing  on  28.1.2010.”

13. The normal inference of the above extracted statement should  

be that the application was filed sometime prior to 28th January,  

2007.  However, the remaining paragraphs referred to events which  

took place on 4.8.2010 i.e. the date of joint statement (exhibit P-4).  

It is not clear from the record whether the Annexure P-7 is a true  

copy  of  certified  copy  of  the  application  filed  by  the  appellant  

herein.  The appellant herein owes an explanation with regard to  

the discrepancy of the dates referred to above. Para 4 of the said  

application reads as follows:-

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“That  the  defendants  applicants  are  not  alleging  any  malafide  intention on the part of the learned presiding officer inspite of the fact that  some  undesirable  persons  are  claiming  that  they  have  approached  the  learned presiding officer and the order for withdrawal and dismissal of the  suit qua the claim and relief claimed by plaintiffs nos.1 and 3 will not be  passed nor the suit will be dismissed.  But it appears that inadvertently and  due to oversight the orders for dismissal of the suit filed by plaintiffs nos.1  and 3 has not been passed inspite of the statement dated 4.8.2010 made by  their  counsel  along  with  Ram Dass  plaintiff  read  with  the  application  moved earlier by Jawahar plaintiff No.3.

    It is, therefore, prayed necessary orders for dismissal of civil suit on  behalf  of plaintiffs  1 and 3 may kindly be passed keeping in view the  above said circumstances as they have already withdrawn the same and  have sought the dismissal of their suit.”

In substance, praying that the suit  be dismissed in so far as  it  

pertains to respondents Nos. 1 and 3 herein.   

14. As the matter stood, thus, another application (Annexure P-8)  

came to be filed on 16.9.2010 purportedly on behalf  of  the first  

respondent  herein.  The  substance  of  the  application  is  that  

annexure  P-2  application  dated  18.12.2007  and  the  statement  

dated 4.8.2010 (annexure P-4) had been wrongly submitted by the  

above-mentioned  Advocate  Shri  Arun  Kumar  and,  therefore,  the  

first respondent herein be allowed to withdraw the same and pursue  

the suit. The prayer portion is as follows:-

“It is therefore prayed that the application dated 4.8.10/18.12.07  has  been wrongly submitted  before the  Hon’ble  Court  by Sh.  Arun Kumar Advocate.  Hence applicant may please be allowed  to  withdraw  the  said  application  dated  4.8.10/18.12.07  and  further be retained as a plaintiff in the said suit in the interest of  justice.”

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15. It is also stated in para 3 of the affidavit as follows:-

“That  the  applicant  never  engaged  Sh.  Arun  Kumar  as  his  advocate  and further  never  intended to submit  such applicant.  The  applicant/plaintiff  has  not  reached  to  a  compromise  with  defendants.”

16. The said application was supported by an affidavit of the first  

respondent  herein  wherein  the  first  respondent  reiterated  the  

various allegations made in the application portions of which are  

extracted earlier. An identical application and affidavit (Annexure P-

9) also came to be made by the third respondent herein on the  

same date i.e. on 16.9.2010.

17. Such applications were contested by the appellants herein by  

filing a counter.  

18.  On 1.2.2011 the trial court recorded the statement  by one  

Shri  M.S.  Gulia,  Advocate said to be appearing for  the plaintiffs.  

The statements as follows:-

“….Stated that I do not press the application dated 18.12.2007  and 4.8.2010.”

19. Thereupon the trial court passed an order on the same date  

which reads as follows:-

“ Sh. M.S. Gulia Ld. Counsel for plaintiff has made a statement  that he does not press the application order dated 18.12.2007 &  4.8.2010,  accordingly.   Both  the  applications  is  disposed  off  accordingly. Now come upon 8.2.2011 for rebuttal evidence, if  any and arguments.”

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20. Aggrieved by the said order, the appellants herein carried the  

matter by way of Revision under Article 227 of the Constitution of  

India to the Punjab and Haryana High Court  by the order under  

appeal.  The said revision was dismissed.  The High Court held -  

“The learned trial Court was well within its jurisdiction to  allow  the  withdrawal  of  application  dated  18.12.2007  and  statement dated 4.8.2010 under its inherent powers and this  view  can  be  supported  by  way  of  the  latest  judgment  of  Hon’ble  Supreme  Court  in  Rajinder  Prasad  Gupta  v.  Prakash Chandra Mishra (2011) 2 Supreme Court Cases  705 …………….”

The  High  Court  after  examining  four  paragraphs  of  the  above-

mentioned judgment finally held –

“In  my  considered  opinion,  the  impugned  order  is  innocuous and no prejudice will be caused to the defendants- petitioners as they will have full opportunity to present their  case before the learned trial Court at the relevant stage.

Keeping  in  view  the  facts  and  circumstances  discussed  hereinabove,  this  Court  finds  no  illegality  or  perversity  in  the  impugned  order  dated  1.2.2011  (P.16)  passed  by  the  learned  Civil  Judge  (Sr.  Division),  Jhajjar  warranting  interference  under  Article  227  of  the  Constitution.”

21. Learned senior counsel for the appellant Mr. Brijender Chahar  

argued that the High Court erred in dismissing the Revision.  He  

further submitted that the question is not whether the trial Court  

had the inherent power to permit the respondent-plaintiffs  to go  

back on their earlier “applications” dated 4.8.2010 and 18.12.2007  

but in the circumstances of the case particularly in the background  

of the reasons given in the affidavit dated 7.8.2010 (p.5) wherein  

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the 1st respondent herein made a categoric allegation that he had  

been  “falsely  impleaded  as  a  plaintiff”  and  his  signatures  are  

“forged” etc. whether the inherent power of the Court was exercised  

in accordance with the well established principles of law.

22. On the other hand, learned senior counsel for the respondent  

Mr. Uday U. Lalit argued that even in cases where an application for  

withdrawal of the suit is allowed, it is held by this Court that nothing  

prevents the plaintiffs to go back upon the withdrawal.  Therefore,  

nothing in law prevents the respondents/plaintiffs to withdraw their  

applications  for  the withdrawal  of  the suit.   The learned counsel  

relied upon Jet Ply Wood (P) Ltd. and anr. Vs. Madhukar Nowlakha  

& Ors., (2006) 3 SCC 699 and Rajendra Prasad Gupta Vs. Prakash  

Chandra  Mishra  &  Ors.,  (2011)  2  SCC  705  in  support  of  his  

submissions.

23. As rightly contended by the learned counsel for the appellant,  

the issue is not whether the trial court has the power to permit the  

withdrawal of the applications filed earlier to the withdrawal of the  

suit but whether  such powers was exercised in accordance with law  

and for the purpose for which it is meant.  The mere existence of a  

power does not justify the exercise of the power.  In the context of  

the  powers  of  the  judicial  bodies,  all  powers  are  required to  be  

exercised with a view to secure ends of justice.  In neither of the  

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above-mentioned two cases this Court had an occasion to examine  

whether the inherent power of the Civil  Court under Section 151  

CPC was properly  exercised.   In the 1st case,  the suit  had been  

withdrawn by the plaintiffs and the plaintiffs subsequently sought to  

go back upon the withdrawal and reopen the suits on the ground  

that they were induced to withdraw the suit on a misrepresentation  

made by the defendants.  In the 2nd case, the plaintiff “changed his  

mind”  after  filing the applications  for  withdrawal  of  the suit  and  

sought to withdraw the said application even before a formal order  

permitting the withdrawal was passed the Court.  The argument in  

both the cases was the trial Court lacked the jurisdiction to permit  

the course of action undertaken by the plaintiffs.  This Court only  

laid  down the  principle  that  Section  151  of  CPC  recognises∗ the  

existence of ample power on the Civil Court to permit the plaintiffs  

to pursue the course of action undertaken by them.  

24. In  Jet  Ply  Wood (supra),  the  trial  Court  rejected  the  

application of the plaintiffs “recalling the order by which the suit had  

been permitted to be withdrawn”.  The High Court recalled the order  

and restored the suit.  Dealing with the case, this Court held at para  

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“………………. which indicates that the court did not find  any scope to exercise its inherent powers under Section 151  of the Code of Civil Procedure for recalling the order passed  

 AIR 1962 SC 527 = Section 151 CPC does not cater but only recognizes the powers, which are  inherent in the civil court.

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by it  earlier.   In  the circumstances  set  out  in  the  order  of  24..2004, the learned trial  court  felt  that no case had been  made  out  to  recall  the  order  which  had been made at  the  instance  of  the  plaintiff  himself.  It  was,  therefore,  not  a  question of lack of jurisdiction but the conscious decision of  the court  not to exercise such jurisdiction in favour of the  plaintiff.”

This  Court  did not  examine the question whether “the conscious  

decision of the Court not to exercise such jurisdiction” was justified.  

This Court only held that the High Court’s decision to reverse the  

trial  Court’s  order -  not  to permit  the recall  of  the earlier  order  

permitting the withdrawal of the suit - does not call for interference.

“27. We are of the view that the law having been  correctly stated in the aforesaid case, the learned Singl Judge  of the Calcutta High Court in making an order on the same  lines did not commit any error of jurisdiction which calls for  any interference in these appeals.”

25. But the fact situation on hand does not, in our opinion, justify  

permitting  the  respondents  1  and  3  to  withdraw  their  earlier  

applications (p.2) dated 18.12.2007 and the statement of the 1st  

respondent  dated  04.08.2010  as  a  matter  of  course  in  the  

background of the content of the affidavit (p.5) dated 7.8.2010.  If  

the  content  of  p.5  is  proved  to  be  false,  there  is  no  validly  

constituted suit at least on behalf of the 1st respondent.  Secondly,  

the professional conduct of the counsel Mr. Arun Kumar may require  

an examination in the interest  of  the purity of  a justice delivery  

system.  If  the content of P.5 is proved to be false, appropriate  

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legal action against the 1st respondent must be taken.  His conduct  

apart from anything else amounts to the abuse of the process of  

this Court.

26. In the circumstances, we are of the view that the High Court  

erred in dismissing the revision of the appellants herein.

27. We allow the appeal and remit the matter to the High Court  

for  an examination of the factors indicated above and any other  

relevant  factor  which  the  High  Court  may  deem  appropriate,  if  

necessary even by taking evidence, and pass appropriate orders in  

accordance with law.  The trial of the suit shall stand stayed until  

the High Court takes a final decision as indicated above.

………………………………….J. ( P. SATHASIVAM )

………………………………….J. ( J. CHELAMESWAR )

New Delhi; February 06, 2012.

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