SURESH CHANDRA CHAUDHARY Vs. RANJANA DEVI

JUDGEMENT

(1.) This revision application is directed against an order dated the 28th June, 1985, passed by the Additional Subordinate Judge, 3rd Court, Munger, in Title Suit No. 95 of 1979 whereby and where under the plaintiff was permitted to withdraw the suit.

(2.) In view of the point involved in this case, it is not necessary to state the facts of the case in details. The facts of the case lie in a very narrow compass. One Jagannath Chaudhary instituted Title Suit No. 95 of 1979 in the Court of the Subordinate Judge, 1st Court, Munger inter alia, for a declaration that the dee d of gift dated the 25th July, 1979, executed in favour of defendant No. 1 Smt. Ranjana Devi (opposite party No. 1) was void and be set-aside and for a further declaration that the defendant first party had derived no title thereto. The said Jagannath Chaudhary died on the 3rd April, 1981, and his widow Annapurana Devi was substituted in his place, On the 23rd April, 1985 Annapurna Davi filed an application under Order XXIII, Rule 1 of the Code of Civil Procedure for withdrawal of the suit. In the said application, it was inter alia, stated that no fraud was practised in the matter of the execution of the aforementioned deed of gift and it was further stated that the same was executed by her husband (the original plaintiff) Jagannath Chaudhary out of his own free will with regard to his one-third share.

(3.) According to the petitioner who was defendant No. 4 in the court below, the said application for withdrawal of the suit was exclusive and did not represent the true state of affairs. However, before any order could be passed on the said petition, the aforementioned Annapurna Devi died on the 2nd May, 1985. On the 24th June, 1985, the petitioner filed an application for being transposed to the category of the plaintiff. It was further stated that the purported vakalatnama allegedly executed by Smt. Annapurna Devi was a forged and fabricated document as she had been a ling for a long time and was not in her senses to execute any vakalatnama. The said petition was directed to be put up on the next date fixed. However, on the 28th June, 1985, the lawyer appearing on behalf of the aforesaid Annapurna Devi who, as stated hereinbefore, died in the meanwhile filed the said application for withdrawal of the suit along with the affidavit of one Brahmanand Jha in which it was alleged that the deceased Annapurna Devi was his own aunt and on whose asking he was working Karpordaz. According to the petitioner, the impugned order was passed without calling out the suit and hearing the dependants and without hearing and/or passing any order on the application for transposition filed on behalf of the petitioner.