Ram Chand Gupta, J. - (1.) THE present revision petition has been filed under Article 227 of the Constitution of India for setting aside impugned order dated 1.2.2010, vide which application filed by present Petitioner for restoration of Civil Suit No. 15 of 2003 pending before learned Additional Civil Judge, Senior Division, Sonepat, has been dismissed with a prayer for acceptance of present revision petition and for allowing the application for restoration of the suit filed by the petitioner.
(2.) I have heard learned Counsel for the parties and have gone through the whole record carefully including the impugned order passed by learned trial Court. Facts relevant for the decision of present revision petition are that a suit for possession with a consequential relief of declaration was filed by present petitioner -plaintiff along with his sister, Smt. Krishana for possession that civil court judgment and decree dated 20.7.1991 passed in Civil Suit No. 877 of 18.5.1991 titled 'Rajbir etc. v. Murti' is null and void and not binding against the interest of the plaintiffs.
(3.) DURING pendency of the suit, an application dated 5.6.2006 was filed by present Petitioner requesting for withdrawal of the suit to the extent of his share. On the same day, he also got recorded his statement before the Court and, however, the case was adjourned to 28.8.2006 by learned trial Court for consideration on the application. Vide order dated 23.10.2006, in view of the statement made by present petitioner in the application, suit was dismissed as withdrawn qua present petitioner -plaintiff No. 1. proceedings continued in the suit qua the other plaintiff till 16.9.2008, when the present application was moved for withdrawal of admission dated 5.6.2006 and for requesting for restoration of the suit, which was dismissed by learned trial court by observing as under: With due regards to the rival contentions, I find no merit in the application. On perusal of file, it is observed that plaintiff No. 1 Mahender had moved an application order dated 5.6.2006, duly signed by him and counter signed by his counsel for withdrawal of suit to the extent of his share. On the same day, he had got recorded his statement before the court and case was adjourned to 28.8.2006 and then 23.10.2006, for consideration on validity of statement. My Ld. predecessor vide his order dated 23.10.2006, ordered that in view of plaintiff No. 1's statement the suit of the plaintiff No. 1 will not proceed against the defendants and the suit of the plaintiff No. 2 will proceed against defendants. Thereafter, proceedings continued till 16.9.2008 when the present application was moved for withdrawal of admission dated 5.6.2006 on the ground that defendants No. 1 and 2 by playing fraud upon plaintiff No. 1, had obtained signatures on blank papers and used the same for making application dated 5.6.2006 and that statement recorded before court was also obtained erroneously by the defendants under a conspiracy, so the same are not binding on the plaintiff No. 1. The application under consideration was moved at the stage of evidence for the plaintiff. This court is convinced that the conduct of plaintiff No. 1 is nothing but our effort on his part to undone a thing which has already been done. Had there been any force in the claim of fraud of the plaintiff No. 1/ applicant, his application would not have had been counter signed by his advocate. Not only this, in case of fraud, he should have had also pointed a finger against his counsel also instead of just referring to the role of defendants No. 1 and 2. The falsity in the applicant's claim is also evident from the fact that he had made statement before the court and the same is presume to be recorded without any fraud, force or coercion or influence of any party including defendants. The applicant has not been able to explain as to why he did not raise his grouse against the defendants before the court and why he waited for almost two years to make such a frivolous application.;