JAMAL SULEMAN KHOD Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE present Civil Revision Application u/s.115 of the Code of Civil Procedure has been preferred by the applicants herein ? original plaintiffs to quash and set aside the impugned order dated 19/07/2010 passed by learned 2nd Additional Senior Civil Judge, Gandhidham-Kutch below Exh.46 in Special Civil Suit No.2 of 2010, by which, learned Trial Court has dismissed the suit as withdrawn and not only that learned Trial Court has directed the Registrar of the Court to file criminal complaint against the plaintiff No.2 ? Sakinabai Hasam Khod for the offences punishable under Sections 181 and 193 of the Indian Penal Code.

(2.) FACTS leading to the present Civil Revision Application, in nutshell, are as under: The applicants herein ? original plaintiffs instituted Special Civil Suit No.2 of 2010 against the respondents herein ? original defendants in the Court of learned Principal Senior Civil Judge, Gandhidham-Kutch for declaration and permanent injunction to quash and set aside the registered sale deeds dated 26/05/2005 and 30/05/2006. That the said suit came to be filed on 06/02/2010. It is required to be noted that the said suit was instituted/filed by learned advocate Mr.N.V.Rathod on behalf of the plaintiffs. It appears that one application/ purshis below Exh-46 was submitted before learned Trial Court signed by original plaintiffs permitting them to withdraw the suit and further submitting that they have no right, title and interest in the suit property in question. It appears that the said application/purshis below Exh-46 was submitted by another advocate Mr.S.G.Rana on 29/04/2010. It appears that learned advocate Mr.N.V.Rathod, who originally filed the suit, objected to withdraw the suit by submitting that he has no further instruction in the matter and he still continued to be an advocate for the plaintiffs and Mr.Rana, learned advocate has filed Vakalatnama without his consent. It appears that there was some dispute with respect to court fees also and, therefore, learned Trial Court did not pass an order on application below Exh.46. In the meantime, learned advocate Mr.S.G.Rana submitted another application/purshis below Exh-53 by submitting that he is paying deficit court fees i.e. Rs.15,500/- and in fact he paid the deficit court fees also. It appears that along with application Exh-46 one affidavit affirmed by the original plaintiffs was also produced. It appears that before any formal order could be passed by the learned Trial Court on application below Exh-46, by which, original plaintiffs requested to permit them to withdraw the suit, original plaintiff No.2 ? Sakinabai Hasam Khod submitted another purshis/application dated 22/06/2010 by submitting that signatures on application Exh.46 as well as on affidavit produced along with the said application, have been obtained by misrepresentation and she has not in fact submitted any application to withdraw the suit with respect to land bearing Survey No.504 situated at Village: Miti Rohar, Gandhidham-Kutch. That the learned Judge kept the said application below Exh.54 along with application/purshis below Exh.46. That despite the above application below Exh.54 by which the plaintiffs submitted that application below Exh.46 has been filed by misrepresentation and they do not want to withdraw the suit and they want to continue the suit, learned Trial Court by impugned order dated 19/07/2010 has dismissed the suit as withdrawn by considering the application/purshis below Exh.46 on the ground that once the application was submitted to withdraw the suit, thereafter it was not open for the plaintiffs to submit another contrary application withdrawing the earlier application for withdrawal of the suit and to continue the suit. Not only that but learned Trial Court passed an order directing the Registrar of the Court to file criminal complaint against plaintiff No.2 for the offences punishable under Sections 181 and 193 of the Indian Penal Code. Being aggrieved by and dissatisfied with the impugned order dated 19/07/2010 passed by learned Second additional Senior Civil Judge, Gandhidham-Kutch, the applicants herein ? original plaintiffs have preferred the present Civil Revision Application under section 115 of the Indian Penal Code.

(3.) HEARD learned advocates appearing on behalf of the respective parties at length.