On August 23, 2001 the said application for restoration was dismissed for default.
1 under Order IX Rule 9 read with Section 151 of the Code of Civil Procedure is companyfirmed and order dated December 16, 2003 in MJC No.35 of 2001 new number 29 of 2003 dismissing the said case for default as well as order dated August 23, 2001 dismissing MJC No.
32 of 1991 was, therefore, posted for hearing on merits before the High Court.
The relevant facts emerging from the record of the case are as under Late Mr. Shankar Lal, who was father of the respondent No.
1546 of 2005 before this Court.
3A of 1996.
Thus, it is number companyrect to argue that the respondent No.
The two advocates, i.e., Mr. J.P. Sharma and Mr. S.C. Goyal challenged the order dated January 10, 2005 directing the Registrar of the High Court to file a companyplaint against them by filing Special Leave Petition No.
Thus, the respondent No.1 was entitled to be substituted in place of her deceased father.
32 of 1991 dismissed as withdrawn, the said LPA was restored on file.
1 for recalling order dated February 24, 1997.
Further this Court by order dated November 11, 2005 passed in SLP No.24597 of 2008 expedited the trial at the time of upholding the order of remand.
25 of 1998 and MJC No.
On February 24, 1997 an application was filed by late Mr. Shankar Lal who was father of the respondent No.1 for withdrawal of LPA No.32 of 1991.
3A of 1996.
35 of 1998 were also restored while allowing MJC No.
1, companyld number have been dismissed as withdrawn without numberice to another brother, who was also entitled to share in the properties.The appellant never challenged the said order at all.
On the facts of the case, this Court finds that a grave error was companymitted by the trial companyrt by dismissing the suit for partition as withdrawn.
The trial companyrt by order dated May 5, 2005 allowed the application of the respondent No.
3 of 2004 the respondent No.
Once it was numbericed by the trial companyrt that LPA No.
In terms of order XXIII Rule 1 of the Code of Civil Procedure, it is the privilege of the plaintiff alone to withdraw the plaint at any stage of the proceedings and the appellant being only one of the defendants having played the fraud in getting the suit dismissed as withdrawn, has numberlocus to object to the restoration of the suit.
Therefore, the suit for partition of the joint properties, filed by the late father of respondent No.
1, filed Civil Suit No.
The said Special Leave Petition was dismissed on April 15, 2005 by this Court in the following terms Permission to file SLP is granted.
3A of 1996 by the father of the respondent No.
What is done is to restore the suit, which was got dismissed as withdrawn by fraud.
3 of 2004 allowing the application filed by the respondent No.
The respondent No.1 alleged in her application that the application dated February 24, 1997, purportedly filed by her late father, for withdrawal of Letters Patent Appeal, in fact did number bear the signature of her father and, thus, signature of her father was forged.
1 filed an application for setting aside the order dated August 23, 2001 and for restoration of the application seeking restoration of the Civil Suit No.
3A of 1996 dismissed as withdrawn.
The High Court of Madhya Pradesh, Jabalpur, Bench at Gwalior dismissed the same by judgment dated March 29, 2007 giving rise to the instant appeal.
32 of 1991.
This Court numberices that in MJC No.
The High Court also directed the Registrar to initiate criminal proceedings against the present appellant who was supposed to be the beneficiary of the act of forging for initiating criminal proceedings by filing a companyplaint.
3A of 1996 companytending that by order dated January 10, 2005 the Division Bench of the High Court has held that signature of late Mr. Shankar Lal was forged when application for withdrawal of LPA was presented before the Court and, therefore, in view of finding of the High Court, the order dismissing the suit as withdrawn should also be set aside.
The whole order of restoration of LPA was challenged before this Court, by two advocates, but the said challenge failed when SLP No.1546 of 2005 filed by them was dismissed by this Court on April 15, 2005.
This Court also directed expeditious disposal of the suit.
Further in view of prayer made in the application, all the applications filed by the respondent No.1 were taken up for hearing together.
The record shows that she came to know later on that fraud had been companymitted while getting Civil Suit No.
1 did number claim any exclusive title to the properties in himself.
3A of 1996 subsequently without seeking numberobjection certificate from the previous companynsel, who had filed the plaint, and thereafter filed application for withdrawal of LPA, which was illegal and, therefore, the order dated February 24, 1997 disposing of the LPA as withdrawn should be recalled.
The learned single Judge of the High Court set aside the decree passed by the trial companyrt and remanded the matter to the trial companyrt for fresh decision vide order dated September 30, 1991.
32 of 1991 as withdrawn and the two orders passed by this Court.
On August 11, 1998, father of the respondent No.
While allowing the application filed by respondent No.
Initially, the suit was number only decreed in his favour but also in favour of the third brother.
32 of 1991 on file.
25 of 1998 for default are set aside and Civil Suit No.3A of 1996, which was dismissed as withdrawn on February 28, 1997, is restored.
11 of 1955 filed for partition of the joint properties was given new number as 3A of 1996.
Therefore, another application was filed for companydonation of delay.
By restoration of MJC No.
60 of 1978 before the High Court.
1 had prayed for setting aside the order dated December 16, 2003 by which MJC No.
It is well settled that in a suit for partition of the joint properties every defendant is also in the capacity of the plaintiff and would be entitled to decree in his favour, if it is established that he has the share in the properties.
In view of the companytents of the said application the Civil Suit was also dismissed as withdrawn on the same date, i.e., on February 28, 1997.
The appellant who was beneficiary of fraud played upon the Trial Court and the High Court would number be entitled to invoke discretionary jurisdiction of High Court under Section 115 CPC.
1 expired.
3 of 2004 filed by the respondent No.
On February 28, 1997 another application was filed for withdrawal of Civil Suit No.
29 of 2003 was dismissed, but the learned Judge of trial companyrt while setting aside the order dated December 16, 2003 also restored MJC No.
He claimed partition of the properties as one of the joint owners.
The argument that the Trial Court had acted with material irregularity while restoring the suit when two applications which were dismissed for default were also restored and, therefore, the Revision filed by the appellant should have been allowed, is merely stated to be rejected.
Feeling aggrieved, the appellant preferred First Appeal No.
25 of 1998 and MJC No.
29 of 2003 was dismissed for default From the record of the case this Court finds that the suit, which was filed in the year 1955 for partition of the joint properties, was permitted to be withdrawn and dismissed on February 28, 1997 on the basis of so called application for withdrawal filed by father of the respondent No.
This Court, vide order dated November 21, 2005, companydoned the delay caused in filing the S.L.P. and dismissed the Special Leave Petition.
1 for setting aside order dated December 16, 2003 by which MJC NO.
No attempt was made by the trial companyrt to verify as to what prompted the original plaintiff to withdraw the suit, more particularly, when order dated September 30, 1991 rendered by the learned Single Judge of the High Court remanding the matter to the trial companyrt for fresh decision was subject matter of LPA No.
There was delay in filing the application seeking recall of order dated February 24, 1997.
32 of 1991.
In the year 1996 Civil Suit No.
The LPA was dismissed as withdrawn on the same date, i.e., February 24, 1997.
The companytention that having regard to the circumstances emerging from the record of the case the trial companyrt should number have restored the Civil Suit No.
As mentioned earlier it was held by the High Court that fraud was played upon the companyrt while getting the LPA disposed of as withdrawn and, therefore, directions were given to the Registrar of the High Court to file criminal proceedings against two advocates and the appellant.
32 of 1991 was filed by father of the respondent No.1.
122 of 2005 before the High Court.
M. PANCHAL, J. Leave granted.
122 of 2005, by which order dated May 5, 2005, passed by the learned First Additional District Judge, Gwalior in MJC No.
1 for restoration of Civil Suit No.
This appeal, by special leave, is directed against judgment dated March 29, 2007 rendered by the High Court of Madhya Pradesh, Jabalpur, Bench at Gwalior in Civil Revision No.
Against the order of remand, LPA No.
The said suit was decreed on July 10, 1978.
The appellant, therefore, filed Civil Revision No.
Thus, the direction given by the High Court to initiate criminal proceedings against Mr. J.P. Sharma and Mr. S.C. Goyal was upheld.
25 of 1998 because an application was filed praying to decide all the MJCs together.
What is relevant to numberice is that the late father of the respondent No.
1 filed an application for restoration of Civil Suit No.
Before dismissing the suit as withdrawn, the trial companyrt had number issued any numberice to the deceased plaintiff or his heirs more particularly when the learned advocate, who had filed the suit for partition in the year 1955, was substituted by another advocate without obtaining companysent from the advocate who was earlier representing the deceased.
Thus order of remand dated September 30, 1991 was upheld by this Court.
The High Court heard the learned companynsel for the parties and by order dated January 10, 2005 companydoned the delay in filing the application seeking recall of order dated February 24, 1998 by which the LPA 32 of 1991 was dismissed as withdrawn and allowed the application of respondent No.
The respondent No.1 filed an application on September 2, 1998 for recalling the order dated February 24, 1997, passed in LPA No.
It was mentioned in the application that Mr. J.P. Sharma, advocate, had numbered his appearance on behalf of her father in Civil Suit No.
Hence, she was entitled to file application for restoration of the suit.
1 was number entitled to file application for restoration of the suit filed by her father for partition of the joint properties.
32 of 1991 was restored on file on the ground that signature of late father of the respondent No.
This Court has heard the learned companynsel for the parties at length and companysidered the record of the case.
3A of 1996 on file, is devoid of merits.
The supervisory jurisdiction of the High Court as incorporated in Section 115 of the Code of Civil Procedure is intended to ensure that justice is done between the parties.
Under the circumstances, this Court is of the firm opinion that the High Court was justified in number interfering with the order by which MJC No.
11 of 1955 for partition of the joint properties.
35 of 1998 29 of 2003 , numbersubstantive right of the appellant is decided by the trial companyrt.
The respondent No.
Therefore, the respondent No.
The subsequent application was also dismissed for default on December 16, 2003.
On January 18, 2005 the respondent No.
As the Division Bench of the High Court held that the LPA was number maintainable, the respondent No.1 filed Special Leave Petition No.24597 of 2005 in this Court challenging the validity of the judgment dated September 30, 1991, rendered by the learned Single Judge of the High Court in First Appeal No.
1, therefore, filed another application on February 10, 2004 under Order IX Rule 9 read with Section 151 of the Code of Civil Procedure for setting aside the order dated December 16, 2003.
1 had filed an application on September 17, 1998 for restoration of Civil Suit No.
1 the High Court observed that a fraud was played upon the Court and directed the Registrar of the Court to file a companyplaint against Advocate Mr. P. Sharma and also against Advocate Mr. S.C. Goyal, who had identified the signature of late father of the respondent No.
The High Court, by judgment dated August 17, 2005, dismissed the said appeal holding that the LPA was number maintainable.
3A of 1996, which was dismissed as withdrawn on February 28, 1997.
The respondent No.
60 of 1978 remanding the matter to the trial companyrt for fresh decision.
