PARDEEP SINGH Vs. KRISHNA RANI

JUDGEMENT

(1.) Present petition is filed challenging order dated 1.2.2008 passed by the Civil Judge, Junior Division, Kurukshetra, as well as the judgment and order dated 5.11.2008 passed by the Additional District Judge, Kurukshetra, whereby suit of the Plaintiff was dismissed under Order 23 Rule 1(4)(b) Code of Civil Procedure on the ground that the Plaintiff had earlier filed suit for declaration, declaring the impugned sale deed void, which was got dismissed as withdrawn vide order dated 13.6.2006 without any further liberty to file a fresh suit on the same cause of action.

(2.) Mr. Arun Palli, Sr. Advocate assisted by Mr. S.S. Dinarpur, Advocate argued that earlier suit was withdrawn because Plaintiffs were made to understand that the matter can be resolved in the Panchayat. He further argued that thereafter nothing was decided by the Panchayat and fraud was played on the Plaintiffs, hence, necessity arose for the Plaintiffs to file fresh suit. He states that since withdrawal order was outcome of fraud, hence, the Plaintiffs are at liberty to file an application under Section 151 Code of Civil Procedure before the trial Court for recalling the order dated 13.6.2006, in view of the judgment of the Apex Court in the case of Jet Plywood P. Ltd. v. Madhulcar Nowlakha, 2006 3 SCC 699 and Dankha Devi Agarwal v. Tara Properties, 2006 7 SCC 382. He further states that he may be permitted to withdraw present petition as well as the present suit with permission to move an application in the previous suit to recall order dated 13.6.2006.

(3.) Mr. M.L. Sarin, Sr. Advocate assisted by Mr. Naresh K. Joshi, Advocate appearing for the Respondents states that the Petitioners may be permitted to withdraw this petition, but they may not be permitted to move an application before the trial Court. He further stated that no fraud was played on the Plaintiffs and the suit was withdrawn with open eyes.