Delhi High Court
Trilok Singh (Deceased) Through: ... vs Inder Pal (Deceased) & Ors on 15 July, 2013
Author: S.Ravindra Bhat
$~29
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% DECIDED ON:15.07.2013
+ FAO (OS) 313/2013
CM APPL.10415/2013
TRILOK SINGH (DECEASED) THROUGH:
LR JAGMOHAN SINGH ..... Appellant
Through: Mr. Sujeet Kr. Mishra, Advocate.
versus
INDER PAL (DECEASED) & ORS ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE NAJMI WAZIRI
MR. JUSTICE S.RAVINDRA BHAT (OPEN COURT)
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the suit had been withdrawn.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.
FAO (OS) 313-13 Page 1
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: -
"16. The application is totally lacking in particulars of
fraud allegedly played on the deceased plaintiff in having
the suit dismissed as withdrawn. The deceased plaintiff
admits that he signed the papers for withdrawal of the
suit. The only plea is that he was told that he and his
FAO (OS) 313-13 Page 2
family members shall remain in possession of the
basement and ground floor of the property.
17. The said averment does not inspire confidence and
does not constitute a plea of fraud. Once the deceased
plaintiff had agreed to the withdrawal of the suit and his
suit itself was that the property stood transferred vide
Gift Deed to defendants No.2and3 and thereafter to the
defendant No.4, the question of any such assurance in the
face of him being told that the suit was being withdrawn
is incongruous.
18. As far as the plea taken by the deceased plaintiff of
his old age of 91 years is concerned, it may be mentioned
that Mr. Jagmohan Singh who has now been substituted
in place of the deceased plaintiff was fully in the know of
the present suit during the lifetime of the deceased
plaintiff also as is evident from the presence of Mr.
Jagmohan Singh as representative of the deceased
plaintiff being recorded in the order dated 25.07.2006 in
the suit. The present plaintiff was thus fully in the know
of the suit. Moreover, there is no denial even of the
presence of the deceased plaintiff in this Court on 21st
March, 2007 when the suit was withdrawn and as
recorded in the order sheet of that date.
19. Even if it is to be believed that the present plaintiff
and the deceased plaintiff were under the impression that
the suit shall be taken up for hearing on 05.04.2007 and
had not discharged Mr. Manish Sharma and Mr. Amit
Bhardwaj, Advocates, there is no explanation whatsoever
as to why, immediately after 05.04.2007, on not finding
the suit in the list, no steps were taken and the
application was filed only in November, 2007.
20. It cannot be lost sight of that the defendant No.1 was
the son of the deceased plaintiff and the defendants
No.2and3 are the grandsons of the deceased plaintiff and
FAO (OS) 313-13 Page 3
the present plaintiff is another son of the deceased
plaintiff. On enquiry, it is informed that the present
plaintiff is also residing in the same property and it is
informed that the present plaintiff is independently
pursuing a suit against the defendants No.2and3
asserting his rights in the property.
21. In the aforesaid circumstances, the pleas of fraud are
not such which are required to be put to trial."
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 4
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: -
"5. That the suit was listed for 5.4.2007 and the
application for withdrawal of suit was filed on 21.3.2007
by Mr. Anubhav Mehrotra Advocate without taking
no-objection certificate from earlier Advocates Mr.
Manish Sharma and Mr. Amit Bhardwaj.
XXX XXX XXX
7. That the plaintiff/applicant later-on came to know
about the contents of application and a fraud was played
upon the plaintiff who is +91 years old and an
impression was given as to the whole dispute regarding
basement and ground floor has been settled in favour of
plaintiff but nothing of that sort was mentioned in the
application for withdrawal of suit and now the
plaintiff/applicant and his family members are being
threatened to vacate the basement as well as ground
floor of A-51, New Friends Colony, New Delhi."
7. This Court is of the opinion that having regard to the state of
pleadings in the application for recall of the previous order, the
impugned order dismissing it cannot be faulted. The averments are
bereft of any particulars. This Court further notices that there is no
FAO (OS) 313-13 Page 5
averment that any complaint or proceeding was drawn or made
against the counsel concerned who is alleged to have committed the
fraud upon the deceased plaintiff. The vague and general allegations
(which were disbelieved by the Single Judge) were, in the opinion of
this Court, rejected justifiably so.
8. In view of the above discussion, the Court finds no reason to
interfere with the impugned order passed by the learned Single Judge.
9. FAO (OS) 313/2012 is accordingly dismissed.
S. RAVINDRA BHAT, J
NAJMI WAZIRI, J
JULY 15, 2013
/vks/
FAO (OS) 313-13 Page 6
