SHISHPAL Vs. OM PARKASH

JUDGEMENT

(1.) HEARD counsel for the petitioner at length. Prima facie I am of the view that the petitioners have tried to mislead this Court to the effect that the order dated 4.6.99 had been passed on the agreement of the parties. Learned counsel on the basis of instructions has further submitted that in fact the order does not reflect the agreement which had been reached between the parties. He submitted that the parties had only agreed that the defendants in the suit will not alienate the suit property during the pendnecy of the suit. It was never agreed between the parties that possession would remain with the plaintiffs as the possession was with the defendants. Learned counsel proceeded to argue on the aforesaid basis. After hearing the arguments at length, this Court examined the order passed by the trial Court on 4.6.99. A persual of the aforesaid order shows that after hearing the counsel for parties and after perusing the record, the application under Order 39 Rules 1 and 2 read with Section 151 CPC had been decided on merits. There is no whisper anywhere of any agreement between the parties. In fact the trial Court records that during the course of arguments, it was conceded by the counsel for defendants that plaintiffs were in possession of part of the suit land. It appears that the petitioners-defendants in the suit did not care to challenge the aforesaid order. Hence the order became final. It order to get out of the delay the petitioners filed review application on 22.7.2000. The Review Application has been decided by order dated 11.12.2000. A perusal of the order passed shows that the original order dated 4.6.1999 was passed by Miss Ritu Bahl, Civil Judge (Jr. Divn.), Sirsa. The Review Application has been decided by Mr. R.K. Saini, Civil Judge (Sr. Divn.), Sirsa, her successor. A persual of the order shows that the plaintiffs had filed a suit claiming therein that they are owner in possession of the suit land, and that the will executed on 22.5.1998 and registered on 29.5.1998 by Smt. Pato Devi widow of Bhura in favour of the defendants regarding her estate is null and void. The plaintiffs sought the relief of permanent injunction restraining the defendants from getting the mutation entered and sanctioned in their favour on the basis of will and also from alienating the same to some other person. It was further pleaded in the review application that at the time of arguments of the application under Order 39 Rules 1 and 2 read with Section 151 CPC, the plaintiffs had agreed that the defendants were in possession of a part of the suit land. However, a perusal of the order passed on 4.6.1999 shows that it has been mentioned that the concession was made by defendants/applicants to the effect that the plaintiffs-respondents were in possession of a part of the suit land. This factual statement recorded in the order was stated to be incorrect. This was the ground of review. It was argued that the application for injunction ought to have been accepted partly whereas the same has been accepted completely against the arguments of both the counsel and against the facts of the case. From the perusal of the above, it becomes apparent that even before the trial Court when the order dated 4.6.1999 was passed, there was no agreement for passing an order on the consent of the parties or the concession of the parties. After noticing the above facts, the Civil Judge, while passing the order in review has noticed that the order dated 4.6.1999 has become final as no appeal has been filed against the same. The learned Court has also noticed that counsel for the plaintiffs had pointed out to the entries in Jamabandi for the year 1992-93 which was placed on record. These entries show that the plaintiffs have been recorded to be in possession of the suit land. Thus the Review Application has been dismissed by holding that the order dated 4.6.999 has been correctly passed. Thereafter, the defendants filed Appeal, before the ADJ, Sirsa. An application for condonation of delay was filed before the appellate Court. This application has been dismissed. Consequently, the appeal has also been dismissed.

(2.) I am of the considered opinion that no party can be permitted to take advantage of its own wrong. The order dated 4.6.1999 was passed in the presence of the counsel for the parties. Therefore, it leaves no manner of doubt that the petitioners were aware of the exact order that was passed. It also becomes obvious that the review application and the appeal have been filed only to cover the delay in filing the appeal. Not only have the defendants tried to mislead the trial Court as also the appellate Court but they persisted in this Court also. As noticed earlier, the learned counsel opened the arguments with the submissions that the parties had reached an agreement before the trial Court to the effect that during the pendency of the suit, the defendants will not alienate the property. This statement is against the record. A perusal of the order shows that the order dated 4.6.99 was passed in the presence of the parties and no such concession was given by any of the parties. Rather the jamanandi entries show that the plaintiffs are in possession of the suit land. It is settled proposition of law that any party seeking discretionary relief from any Court must make a candid disclosure of all the facts. The parties are duty bound not only to disclose the facts which support the case put forward by the parties, but also to disclose the facts within their knowledge which may prima facie not support the case. Thereafter, the parties are at liberty to explain the facts which may appear to be against them. In the present case, the defendants have persisted in trying to mislead the Court at every stage. In such circumstances, this Court has no option, but to dismiss the revision petition. In view of the above, the revision petition is dismissed with costs of Rs. 10,000/-. Revision dismissed.