LABH SINGH AND OTHERS Vs. BACHAN KAUR

JUDGEMENT

(1.) Order dated 18.8.2010 passed by learned Additional District Judge, Patiala has been impugned in the present petition. The order has been passed by the court below in an appeal filed by the respondent which was already dismissed as withdrawn, on two applications, one for restoration thereof and second for condonation of delay in filing the application for restoration of the appeal. The same having been allowed, the petitioners have challenged the order before this court.

(2.) Learned counsel for the petitioners submitted that the respondent filed a suit against the petitioners on 28.11.1996 for declaration to the effect that she is co-owner to the extent of 1/3 rd share in the agricultural land measuring 70 bighas and 6 biswas. The suit filed by her was dismissed by the trial court on 19.4.2006. She preferred appeal against the judgment and decree of the trial court. During the pendency of appeal, the respondent filed application on 11.8.2006 for preponing the date of hearing of the appeal from 23.8.2006 as she wanted to withdraw the same in view of the matter having been compromised. The learned Additional District Judge permitted the respondent to withdraw the appeal on 11.8.2006. As is evident from the record, the application was filed on account of the fact that she had compromised the matter with one B. V. M. Projects Pvt. Ltd. and in terms of the settlement she had even taken ' 35,00,000/- from it. The petitioners, who were respondents in the appeal filed by the respondent herein, were not party to the settlement. They had not even been issued notice of the application for withdrawal. The appeal was simplicitor withdrawn by the respondent. After withdrawal of the appeal on 11.8.2006, application was filed on 30.10.2006 seeking restoration of the appeal and for decision thereof on merits, as according to the respondent, she had been cheated. The application was wrongly allowed by the court below.

(3.) The submission of learned counsel for the petitioners is that there are no allegations of fraud or misrepresentation against the petitioners. They had never misled the respondent. In fact, she had derived the benefit of settlement arrived at by her with B. V. M. Projects Pvt. Ltd. and is enjoying the same since August, 2006. Even as per the averments in the application, the amount settled between the parties is the only issue. The application has now been filed only to harass the petitioners. In fact, the respondent had compromised the matter with B. V. M. Projects Pvt. Ltd. for the reason that for another piece of property, she had lost litigation under similar circumstances. Under Order 23 Rule 1 Civil Procedure Code, any party has a right to abandon his/her claim. It was not a compromise between the parties to the dispute for which Order 23 Rule 3 Civil Procedure Code would be applicable. After the appeal had been withdrawn voluntarily by her by filing affidavit and even making statement before the court, there is no reason for permitting her to withdraw that statement. He further submitted that the learned court below in the impugned order has referred to the statement made by the petitioners to the effect that they have no objection to the restoration of appeal has, in fact, been recorded under some error. The statement is to be read in its entirety. The petitioners had been contesting the case throughout. Neither in examination-in-chief nor in the entire cross-examination of Labh Singh, there was any indication of his consent for allowing the application filed by the respondent. The lines have been recorded therein under some error, that too after the suggestions have been recorded in the cross-examination. In support his contentions, reliance was placed upon Chando Devi v. Amar Nath Garg, 1993 PunLJ 209; Gangadeep Pratishthan Pvt. Ltd. and others v. Mechano and others, 2005 AIR(SC) 1958and Ram Kishan and another v. Hari Ram, 2008 2 RCR(Civ) 471.