- (1.) Heard Sri Ashish Kumari Singh learned Counsel for revisionist and Sri B.B. Jauhari holding brief of Sri Rishi Bhushan learned Counsel for opposite parties. This Civil Revision has been preferred by defendants against order dated 30.4.2013 passed in Original Suit No. 274 of 2004, whereby the Trial Court has rejected an application (Paper No. 145-C), filed by the power of attorney holder of plaintiffs for dismissing the suit as withdrawn.
(2.) Brief facts giving rise to this revision are enumerated hereunder: Ravi Bala Garg and Amit Garg, plaintiff-respondents-Ist set filed Original Suit No. 274 of 2004 in the Court of Civil Judge (Senior Division) Allahabad for declaration that the freehold-deed dated 29.3.2004 executed in favour of the revisionists/defendant, i.e., Smt. Tabassum Ghazala be declared as null and void. A decree of mandatory injunction was also sought that defendants be directed to transfer the property in dispute in favour of plaintiffs. It is not disputed that the Trial Court on 27.4.2004 passed an ad-interim injunction in favour of plaintiff-respondents-Ist set, which stood confirmed upto the Apex Court in SLP (Civil) No. 5212 of 2005 with the dismissal of SLP on 21.7.2006. However, on 25.7.2008 an alleged settlement was arrived at where under revisionist is alleged to have paid Rs. 2.75 crores, out of which Rs. 1.30 crore was paid through 3 different banker's cheques dated 25.7.2008 and balance Rs. 1.45 crore in cash for which an alleged receipt was issued. It is alleged that on the same date, i.e., on 25.7.2008, plaintiff-respondent No. 1 vacated the property in dispute and handed over the possession thereof to her attorney holder Sri Lal Chandra Nirmal. It is alleged that on the same date, a registered power of attorney dated 25.7.2008 was also executed by the plaintiff-respondents Ist set in favour of Sri Lal Chandra Nirmal, under which he was given authority to deal with the matter in respect of seven suits, which are alleged to be pending between the parties including the power to compound and compromise. Acting in furtherance thereof, Sri Lal Chandra Nirmal the attorney filed an application for withdrawal of suit (Paper No. 145-C) on 6.8.2008. On 23.10.2008, plaintiff-respondents No. 1 and 2 filed application (Paper No. 151-C) that the alleged compromise is illegal as plaintiffs have already cancelled the power of attorney of Lal Chandra Nirmal. On 6.11.2008, an application (Paper No. 154-C) was also filed by respondent-plaintiff 1st set that withdrawal application filed by Lal Chandra Nirmal was not maintainable as he was only a caretaker of the property in dispute and was not empowered to withdraw the suit filed on behalf of plaintiff-respondents 1st set. It is not disputed that the power of attorney dated 25.7.2008 in favour of Lal Chandra Nirmal was cancelled on 21.4.2009.
(3.) The Trial Court vide its order dated 30.4.2013 rejected the application (Paper No. 145-C), filed by the attorney of plaintiff, i.e., it refused to dismiss the suit as withdrawn.;