ANKIT SONI Vs. RAM JI

JUDGEMENT

(1.) THIS is a plaintiff's second appeal in a suit for cancellation of a sale -deed dated 25 -7 -1992. The case of the plaintiff/appellants was that on the death of their father the defendant had helped the plaintiffs in many ways. The property in dispute was purchased by the plaintiffs on 9 -4 -1992 but subsequently the defendant/respondent got a forged sale deed dated 25 -7 -1992 in his favour prepared by setting up an impostor. The case of the defendant is that the sale deed was a genuine transaction and there was no forgery. It appears that during the pendency of the suit an application was filed by Smt. Manju Devi the mother of the minor plaintiffs as their next friend for withdrawing the suit. This application is Paper No. 56 -ga. In this application it was stated that the suit had been filed under a misconception for want of proper legal advice and that the applicant does not want to pursue the suit and it may therefore be dismissed. The statement made in the application being that the plaintiff did not want to pursue the suit and it may be dismissed amounted to an application for withdrawal of the suit. No order was passed by the trial Court upon this application and a date for evidence of the parties was fixed. On 16 -8 -1994 the deposition of Smt. Manju Devi the next friend of the minors was recorded in evidence. She deposed that there remains no dispute with the defendant and that she wants to get the suit dismissed and that the dismissal of the suit would be in the interest of the minors and that she did not want to lead any other evidence.

(2.) THE trial Court proceeded to decide the suit on merits. It held that the burden of proof of issue No. 1, which was to the effect whether the sale deed dated 25 -7 -1992, was liable to be declared as void on the grounds in the plaint was upon the plaintiff. It then proceeded to discuss the plaintiff's evidence and referred to her deposition that she did not want to contest the suit and answered the issue against the plaintiff. The other issues were also decided against the plaintiff and the suit was dismissed on 18 -8 -1994. An appeal was preferred by the plaintiff/respondent through their next friend. One of the questions raised in the appeal was whether in the circumstances it was a case where the plaintiff had abandoned the suit for which permission under Order XXXII, Rule 7 was required. The appellate Court held that the suit had been dismissed for want of evidence and therefore no order for permission under Order XXXII, Rule 7 C.P.C. was required. The appeal was dismissed on 18 -8 -1998. Aggrieved, this second appeal has been preferred.

(3.) THE contents of the application that the suit was filed under a misconception for want of proper legal advice and that the applicant does not want to pursue the suit and it may be dismissed indicates that it was really an application for withdrawal of the suit. In the oral deposition also Smt. Manju Devi stated that there remains no dispute with the defendant and she wants to get the suit dismissed. On these facts it is clear that the case fell under Order XXIII, Rule 1 Civil Procedure Code and the application filed by the next friend of the minor was an application to dismiss the suit as withdrawn. This appears to be the correct construction of the application read as a whole even though the prayer was to dismiss the suit.