Dwarika Prasad vs Nirmala and others [SUPREME COURT OF INDIA, 17 Dec 2009]
(A) Practice & Procedure – Code of Civil Procedure, 1908, s. 115 – Element of fraud - Revision Petition before HC – Maintainability – Held, supervisory jurisdiction of the HC as incorporated in s. 115 of the CPC is intended to ensure that justice is done between the parties - Appellant who benefited as a result of fraud would not be entitled to invoke discretionary jurisdiction of HC u/s. 115 of CPC – Revision petition is not maintainable - Appeal dismissed.
(B) Civil Procedure – Code of Civil Procedure, 1908, s. 151, O. 9 r. 9 – 1st respondent’s father filed suit for partition – Trial Court decreed the suit in favour of 1st respondent’s father – Appellant challenged the Trial Court order before HC – Single Judge set aside the Trial Court order and remanded the matter back to Trial Court – 1st respondent’s father filed Letters Patent Appeal (LPA) against the remand order, however, he filed an application to withdraw the said LPA at later date - DB dismissed the suit as withdrawn and in the meantime, 1st respondent’s father expired – 1st respondent filed an application before the HC for restoration of the remanded suit wherein 1st respondent contended that the counsels for the 1st respondent’s father had forged his signature in the withdrawal application - Single Judge dismissed the 1st respondent’s application for default on two occasions, however, DB allowed the application and set aside the order of withdrawal – Trial Court restored the suit on the basis of the findings of the DB - Appellant challenged the Trial Court order by filing a revision petition - HC dismissed the revision - Whether restoration of suit by Trial Court is proper in the facts and circumstance of the case – Held, LPA was disposed of as withdrawn fraudulently and, therefore, HC gave directions to the Registrar of the HC to file criminal proceedings against two advocates of 1st respondent’s father and the appellant – However, appellant never challenged the said order - Trial Court, while deciding the application for restoration of suit, cannot afford to ignore the findings recorded by the HC while setting aside the withdrawal order of LPA – Therefore, no illegality or irregularity is committed by the HC in dismissing the revision petition filed by the appellant against the Trial Court order, hence no interference called for – Appeal dismissed.
(C) Family & Personal – Hindu Succession Act, 1956, s. 8 - Code of Civil Procedure, 1908, O. 22 r. 3 – Right to sue - Whether 1st respondent is entitled to file application for restoration of the suit filed by her late father – Held, father of the 1st respondent filed suit for partition of the joint properties and on his death right to sue survived and the 1st respondent being his daughter and legal representative was entitled to continue the suit u/s. 8 of Hindu Succession Act inter alia under O. 22 r. 3 of CPC – Appeal dismissed.
