RAMESHWAR SHARMA Vs. SMT. BHAGWATI

JUDGEMENT

(1.) PLAINTIFF - Petitioner has invoked supervisory jurisdiction of this Court under Article 227 of the Constitution of India, challenging the orders dated 12.1.2004 passed by the Civil Judge, Junior Division, Sonepat, as well as, the order dated 3.10.2008 passed by the Additional District Judge, Sonepat, whereby suit of the plaintiff, on the statement of the counsel for the plaintiff, was permitted to be withdrawn with liberty to file a fresh suit on the same cause of action and thereafter, application for recalling the withdrawal order and the appeal therefrom were dismissed.

(2.) BRIEF facts of the present case are that plaintiff -petitioner has filed suit for declaration to the effect that the plaintiff is in actual physical possession and is in cultivation possession over the suit land. The suit was filed in the year 1992. Even after duly served, the defendants remained absent before the trial Court, hence, they were directed to be proceeded ex -parte. Plaintiff has produced his evidence, however, Mr. S. P. Tyagi, Advocate counsel for the plaintiff on 12.1.2004 suffered a statement before the trial Court to the effect that he may be permitted to withdraw the suit with liberty to file a fresh suit on the same cause of action. The trial Court vide order dated 12.1.2004 permitted Mr. S.P. Tyagi, Advocate to withdraw the suit with liberty to file a fresh suit on the same cause of action. Thereafter, plaintiff -petitioner herein moved an application under Section 151 Code of Civil Procedure for recalling of the order dated 12.1.2004, on 30.7.2008. The application so moved by the plaintiff for recalling of the withdrawal order was dismissed by the trial Court vide order dated 18.8.2008, having observed that the plaintiff could not prove that his counsel has withdrawn the suit without his permission. Another ground taken was that the application for recalling the order was moved after more than four years.

(3.) I have heard learned Counsel for the parties and perused the record.