Marry Fernandese vs Shri J.P.Gupta & Anr.
2010 Latest Caselaw 1364 Del

                 * IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                           Date of Order: 11th March, 2010

CM(M) No. 334/2010
%                                                                             11.03.2010

       Marry Fernandese                                            ... Petitioner
                                Through: Mr. Rajender Singh Negi, Advocate

               Versus


       Shri J.P.Gupta & Anr.                                 ... Respondents
                           Through: Ms. Mini Pushkarna, Advocate for MCD/R-2

JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment?

2. To be referred to the reporter or not?

3. Whether judgment should be reported in Digest?

JUDGMENT (ORAL)

By this petition under Article 227 of the Constitution of India, the

petitioner has assailed an order dated 26th November, 2009 of the Appellate Court

whereby the Appellate Court dismissed an appeal of the petitioner against an order

of the trial Court dismissing an application under Order 9 Rule 4 CPC.

2. Brief facts are that the petitioner had filed a suit for permanent

injunction against respondent no.1 before the trial Court. While this suit was

pending, the petitioner also preferred a Writ Petition for the same relief before the

High Court and the petitioner made a statement before the trial Court that she did not

want to continue with the suit and her suit be dismissed as withdrawn. On her this

statement, the suit was dismissed as withdrawn on 9th February, 2009. The Writ

Petition of the petitioner was dismissed by the High Court. The petitioner thereafter

made an application before the trial Court for revival of the suit on the ground that

she was wrongly advised by her Counsel to withdraw the suit. The trial Court

dismissed this application observing that the petitioner had put entire blame on the

previous counsel without naming him and without making any complaint against the

previous counsel for giving wrong advice. The trial Court also observed that once the

suit has been dismissed as withdrawn voluntarily without any force or coercion, the

same could not be restored. The petitioner preferred appeal which was also

dismissed by the Appellate Court noting the conduct of the petitioner in not disclosing

to the Courts below about the pendency of other proceedings and also on the ground

that the conduct of the petitioner as well as her daughter was such that they were

playing mischief to get the alleged relief by hook or by crook and they had even gone

to the extent of leveling allegations against the trial Court.

3. The Counsel for the petitioner has failed to show any jurisdictional

error in the order passed by the Courts below. Once a suit is withdrawn by a plaintiff

voluntarily without any force or coercion, the same cannot be revived by the plaintiff

on the ground that he/she withdrew it under wrong advice.

The petition is hereby dismissed.

March 11, 2010                                  SHIV NARAYAN DHINGRA, J.
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