Valmiki J.Mehta, J. - (1.) THIS petition under Article 227 of the Constitution of India impugns the order of the court below dated 19.7.2014 by which the application of the petitioner/plaintiff for restoration of the suit which was withdrawn by her on 23.7.2007 has been dismissed after recording of evidence of the petitioner/plaintiff with respect to whether the petitioner had or had not given the consent.
(2.) THE court below records that though the case of the petitioner/plaintiff is that she is an illiterate lady and she did not know that she is appearing in court and making a statement for withdrawal of the suit but the petitioner/plaintiff cannot be believed inasmuch as admittedly she asked one advocate Mr. M. Sultan Siddiqui to appear in her case and the said advocate was not summoned in evidence by the petitioner/plaintiff to show that she did not ask her advocate Mr. M. Sultan Siddiqui to withdraw the suit. The court below also notes that earlier a suit filed for the same property by the plaintiff was allowed to be withdrawn subject to payment of costs of Rs.2000/ - and thereafter the subject suit was filed. In fact the petitioner/plaintiff personally appeared before the judge and recorded statement in court for withdrawal of the suit. The presiding officer of the court hence allowed the petitioner/plaintiff to withdraw the suit in terms of her statement. The relevant observations made by the court below for dismissing of the application read as under: - " A perusal of the entire testimony of AW1 revealed that she deposed contradictory facts in her examination in Chief and cross -examination. She categorically denied to have made any statement before the Ld. Predecessor which is contradictory to the records. The order dated 23/07/2007 passed by Ld. Predecessor clearly demonstrate that the statement of the applicant / plaintiff was recorded by the Ld. Predecessor on 23/07/2007 during Court proceedings qua the withdrawal of the suit. Therefore, the testimony of AW1 is not reliable in this regard. The applicant / plaintiff also got examined Smt. Neelam Kaler who deposed by way of affidavit Ex. AW2. She also deposed about engaging Sh. M.S. Siddiqui, Advocate for the purpose of adjournment before date of hearing i.e. 26/07/2007. During her cross -examination AW2, could not remember the name of the Counsel who had prepared her affidavit Ex. AW2. She admitted that affidavit Ex. AW2/A was already prepared before her visit with said Counsel. She had not met the Counsel prior to preparation of the affidavit, Ex. AW1/A. She further admitted that the affidavit Ex. AW1/A got prepared by the applicant / plaintiff when she visited her. It is noteworthy that the applicant / plaintiff alleged collusion & connivance between her Counsel and the defendant and also claimed her illiteracy and ignorance to be the reason for making application for withdrawal of the suit, however not a single evidence was led by the applicant / plaintiff to substantiate any such collusion and connivance. Even she did not get Sh. M.S. Siddiqui, Advocate examined as witness in support of her contentions. No plausible explanation could be furnished by the applicant / plaintiff for non -examination of Sh. M.S. Siddiqui, Advocate, who was the material witness to establish her contentions. 8. In the afore -discussed facts and circumstances, I am of the considered opinion that the evidence led by the applicant / plaintiff could not substantiate her stand. Her contentions are found to be contrary to the judicial record. Accordingly, the application Under Section 151 CPC dated 21/08/2007 seeking restoration of the suit is wholly devoid of merit and is accordingly dismissed. File be consigned to Record Room after due compliance." (underlining added)
(3.) I completely agree with the aforesaid observations and it is clear that the plaintiff is deliberately harassing the defendant. The fact that petitioner has no case becomes clear from paras 3 to 5 of the preliminary objections in the written statement and which read as under: - "3. That the Defendant Sh. Param Ved Goel, along with his partner Sh. Ravinder Kumar, purchased the property bearing no.B -1, Acharya Niketan, Mayur Vihar, Phase -I, Delhi -91, measuring 1000 Sq. Yards, hereinafter referred to as the property in question, from one Sh. Vedraj Gupta in 1984 -1987 by way of registered power of Attorney, Sh. Vedraj had purchased the property in question vide registered sale deed dated 29.9.1958 from Mittal Sons Pvt. Ltd. The Khasra Girdawari and Intakal are in the name of Sh. Vedraj Gupta. A copy of the sale deed, Khasra Girdawari and the intakal in favour of Sh. Vedraj Gupta and Power of Attorney dated 04.12.1989 in favour of Sh. Param Ved Goel and his partner executed by Sh. Vedraj Gupta & a few of the House Tax receipts from 1972 till date are attached hereto as Annexure -A collectively, though the Defendant is paying the house tax regularly without any default. The Defendant, Sh. Param Ved Goel, was running a factory in the name of M/s. Rashtriya Proofing Bhawan and the same was shifted in terms of the Orders dated 24.11.2000 of the S.D.M. Preet Vihar, Delhi in compliance of the then prevalent Supreme Court Orders pertaining to water pollution. The site plan of the property in question and the orders of the S.D.M attached hereto and are marked as Annexure B (collectively) to the Written Statement. From the last about 6 -7 yrs and even at present, there are three tenants namely Gorakh Nath, Nanhe and Jaipal in the property in question and also the Defendant is running the building material business in the said property. 4. That the Plaintiff alleges to have purchased the portion of the Property In Question hereinafter referred to as the 'Suit Property' from one Sh. Mangru. The said Sh. Mangru was a tenant inducted by Sh. Param Ved Goel in respect of two rooms in the property in question. Sh. Mangru was paying monthly rent of Rs.90/ - to Sh. Param Ved Goel through Money Orders as well. The said Sh. Mangru had been earlier trying to grab the property in question and a D.D.no. 27 dated 29.11.1989 was also got registered against Mangru. Mangru was evicted by the orders of the then Additional Rent Controller, Sh. N.P. Kaushik in Suit No. E -137/1992 Titled Sh. Param Ved Goel Vs. Sh. Mangru and the tenancy portion was recovered from the Accused Mangru on 01.06.1998 in execution proceedings. The copies of receipts of various money orders, D.D.no. 27 dated 29.11.1989, the eviction order of ARC and a subsequent order of the Delhi High Court in C.M.(Main) No. 200/1998 Titled Sh. Mangru Vs. Sh. Param Ved Goel are attached hereto and marked as Annexure -C collectively.;