The High Court dismissed the revision petition challenging the dismissal of an application to restore a withdrawn civil suit, holding that the plaintiff had knowingly withdrawn the case through his counsel.
Revision petition dismissed; the impugned order dismissing the restoration application stands upheld.
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Civil Revision No. 6426 of 2011
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Civil Revision No. 6426 of 2011 Date of decision:- 07.11.2011
Ram Sawroop
...Petitioner
Versus
Sikandar Singh
...Respondent
CORAM: HON'BLE MS. JUSTICE RITU BAHRI
Present:Mr. Ajay Kumar Kansal, Advocate for the petitioner.
RITU BAHRI J.
Challenge is to the order dated 07.9.2011 (Annexure P-3) whereby an application for restoration of the suit, which the plaintiff had withdrawn at the instance of his counsel, has been dismissed.
A civil suit was filed by the plaintiff titled 'Ram Sawroop versus Sikandar Singh' for declaration that plaintiff is tenant at Will (Gair Marusi) on the land measuring 9 Kanal 6 Marla for the last 70 years. Relief of permanent injunction restraining the respondents from interfering into the peaceful possession of the plaintiff was sought in the suit. The original owner of the land i.e. Bimla Devi and Nirmala Devi have sold this land to one Sikander Singh. Defendant-Sikander Singh started interfering into the possession of the petitioner/plaintiff. When the petitioner/plaintiff came to know that khasra girdawaris has been changed in the name of defendants by the Patwari and a rapat Roznamcha No.34 dated 17.9.2009 has been entered to this effect, he filed the present suit through his Advocate Shri N.K. Kansal. After notice the case was fixed for 10.1.2011 for summoning of defendant. One Dalip Singh brought the
Civil Revision No. 6426 of 2011
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present plaintiff from the village on the pretext that he will get the compromise effected with the defendant if he changes a new counsel. The plaintiff agreed and engaged Shri N.K. Kansal, Advocate to file his vakalatnama. Subsequently, he came to know that his case was dismissed as withdrawn on 09.12.2010. He filed an application to set aside this order and for restoration of the suit. While dismissing this application, the Civil Judge (Senior Division), Jind observed that Shri N.K. Kansal, Advocate was engaged by the plaintiff and on 09.12.2010 he was superseded by another counsel Shri Rajnish Garg, Advocate. On 07.9.2011 plaintiff appeared alongwith his counsel Shri Rajnish Garg, Advocate and got his statement recorded separately on the file. Plaintiff was identified by Shri Rajnish Garg, Advocate. The contents of the application for restoration were not found to be true and the application was dismissed.
At the time of arguments, Shri N.K. Kansal, Advocate could not dispute that the plaintiff had appeared before the trial Court alongwith his counsel Shri Ranjish Garg, Advocate and got his statement recorded. He has referred to Order 3 Rule 4(2) CPC to contend that leave of the Court is to be granted in writing and appointment of pleader can be put to an end by the client or the pleader but this cannot be done without the leave of the Court. The object of Order 3 Rule 4(2) CPC is that before the services of a lawyer are superseded the client should discharge all the liabilities pending with the previous lawyer. Payment of fee can be one of the conditions, which a Court may insist on when the lawyer is superseded. The reasons for taking leave of the court is that it is not open to a client to engage another lawyer without paying the fee to the outgoing lawyer. Keeping this object in mind the Constitution Bench of Supreme Court in Shri Baradakanta Mishra ExCommissioner of Endowments versus Shri Bhimsen Dixit 1973(1) SCC 446 has examined the applicability of Order 3 Rule 4(2) CPC. Applying the ratio of Supreme Court to the facts of present case it transpires that the plaintiff had
Civil Revision No. 6426 of 2011
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appeared through his counsel Rajnish Garg after superseding Shri N.K. Kansal, Advocate, the Court having accepted the appearance of Shri Rajnish Garg, was not bound to record any separate reasons according leave of the Court under Order 3 Rule 4(2) CPC. The plaintiff suffered a statement that he wanted to withdraw the present suit, which was recorded separately on the file and he was duly identified by Shri Rajnish Garg, Advocate. This fact leave no doubt that plaintiff had appeared through his counsel and willfully made his statement and withdrawn the suit. Now, he cannot turn around and say that he was not aware of the fact that he had compromised the matter and one Dalip Singh had fradulently got the old lawyer. Shri N.K. Kansal superseded by getting some blank papers signed from him. It is not an attractive proposition.
The impugned order does not require any interference. There is no illegality or irregularity of procedure.
Dismissed .
07.11.2011 ( RITU BAHRI ) Vijay Asija JUDGE
2 issues framed by the court
Whether interference is required under Order 3 Rule 4(2) CPC to restore a suit withdrawn by the plaintiff via counsel.
Whether the dismissal of the restoration application was legal and regular in the circumstances.
Colour shows how this judgement treated each authority
Shri Baradakanta Mishra Ex Commissioner of Endowments versus Shri Bhimsen DixitApplied¶18
Shri Baradakanta Mishra Ex Commissioner of Endowments versus Shri Bhimsen Dixit 1973(1) SCC 446 · Who else cites this
Ram Sawroop
Sikandar Singh
RITU BAHRI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
