Nafr High Court
Case Details
1 REKHA SINGH Digitally signed by REKHA SINGH 2025:CGHC:21266 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 446 of 2020 1 - Toran Prasad S/o Shri Late Shri Bachchan Bargah Aged About 66 Years R/o Village- Pachira, Post/police Station/district - Surajpur, Chhattisgarh (Defendant No. 1 In The Suit), District : Surajpur, Chhattisgarh versus ... Petitioner(s)
Legal Reasoning
1 - Girdhari Lal Agrawal S/o Ishwar Prasad Agrawal Aged About 76 Years Caste- Agrawal, R/o Surajpur Town, Through Power Of Attorney Holder, Bake Bihari Agrawal, S/o Ishwar Prasad Agrawal, R/o Surajpur, Chhattisgarh. (Plaintiff In The Suit), District : Surajpur, Chhattisgarh 2 - Rahul Gupta S/o Vinod Kumar Gupta Aged About 33 Years Caste - Agrawal, R/o Post/police Station/district - Surajpur, Chhattisgarh. (Defendant No. 2 In The Suit), District : Surajpur, Chhattisgarh 3 - State Of Chhattisgarh Through The Collector Surajpur, District- Surajpur, Chhattisgarh (Defendant No. 3 In The Suit), District : Surajpur, Chhattisgarh ---- Respondents For Petitioner/Defendant No.1 : Mr. Aman Upadhyay, Advocate For respondent No.1 For State/respondent No.3 : Mr. Pramod Ramteke, Panel Lawyer For respondent No.2
Legal Reasoning
: Mr. Keshav Dewangan, Advocate : None appears though served. Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 08.05.2025 1. The petitioner has filed this petition seeking the following relief(s):- “10.1 It is therefore prayed that, this Hon'ble Court may kindly be pleased to call for the entire records pertaining to the case of the Petitioner/Defendant No. 1. 10.2 That, this Hon'ble Court may kindly be -2- pleased to issue a writ in nature of certiorari whereby to set aside/quash the impugned Order dated 01.08.2018 passed by the learned Court of Third Civil Judge Class-1, Surajpur District-Surajpur in Civil Suit No. 41-A/2014. 10.3 That, this Hon'ble Court may kindly be pleased to issue a writ whereby to direct the learned Court of Third Civil Judge Class-1, Surajpur District- Surajpur to restore the counter claim of the Petitioner/Defendant in Civil Suit No. 41-A/2014. 10.4 Any other relief/reliefs, which this Hon'ble Court may think fit and proper in the facts and circumstances of the case, with cost of the petition, may also please be granted to the petitioners.” 2. Mr. Upadhayay, learned counsel appearing for the petitioner/defendant No.1 would submit that a suit was filed by respondent No.1/plaintiff for possession of the suit property bearing Survey No.820 (old Survey No.905/2) admeasuring area 0.502 hectares situated at Village Pachira, Patwari Circle No.47, Tehsil and District Surajpur on 15.04.2014 and it was registered as Civil Suit No.41-A/2014. Mr. Upadhayay would further submit that the petitioner/defendant No.1 and respondent No.2 filed their joint written statement and denied the plaint averments. It is contended that the petitioner and respondent No.2 filed a counter claim claiming therein the relief of declaration of title, permanent injunction as well as cancellation of the sale deed dated 16.07.1975 on 15.01.2015. Mr. Upadhayay would also submit that an application was moved by the plaintiff under Order 23 Rule 1 of CPC for withdrawal of the civil suit and a similar application was moved by the counsel for defendants No.1/petitioner and respondent No.2 for withdrawal and both applications were allowed by the learned Trial Court on 01.08.2018 and 3 consequently, the civil suit and counter claim were dismissed. Mr. Upadhayay would further argue that the application on behalf of the petitioner for withdrawal of counter claim was not supported with an affidavit. He would also submit that there was no instruction on the part of the petitioner to his counsel to withdraw the counter claim and therefore, the order passed by the learned Trial Court dated 01.08.2018 may be quashed and the counter claim may be restored to its original number. 3. On the other hand, learned counsels appearing for the respondents would oppose the submissions made by Mr. Upadhayay. They would submit that the application for withdrawal of counter claim was moved by the petitioner/defendant No.1 and respondent No.2 on 01.08.2018 and the suit as well as counter claim was dismissed as withdrawn by the learned Trial Court according to the provisions of Order 23 Rule 1 of CPC on the same day. Mr. Dewangan would also submit that the application for withdrawal of the counter claim was moved on the instance of the petitioner and respondent No.2. He would contend that the present petition deserves to be dismissed. 4. Heard learned counsel appearing for the parties and perused the documents placed on the record. 5. Admittedly, a civil suit was filed by respondent No.1/plaintiff for possession of the suit property bearing Survey No.820 (old Survey No.905/2) admeasuring area of 0.502 hectares situated at Village Pachira, Patwari Circle No.47, Tehsil and District Surajpur on 15.04.2014. Defendants No.1 & 2 filed their written statement and -4- counter claim on 15.01.2015. During the pendency of the suit, the plaintiff moved an application under Order 23 Rule 1 of CPC for withdrawal of the suit on 01.08.2018 and on the same date, an application was moved by the counsel for the petitioner and respondent No.2 under Order 23 Rule 1 of CPC for withdrawal of the counter claim. 6. Learned Trial Court allowed both applications and dismissed the civil suit as well as counter claim. 7. The petitioner has filed this petition on 07.10.2020 after two years from the date of dismissal of the counter claim making an allegation against the Advocate on the ground that the application for withdrawal of counter claim was moved without the instructions of the petitioner and the application was not supported with the affidavit. 8. With regard to the source of knowledge of the said order, it is stated that when the plaintiff started raising the construction over the suit property and a complaint was made against them before the Police Station, they came to know about it. 9. The contention made by Mr. Upadhayay cannot be accepted as the application under Order 23 Rule 1 of CPC was moved on 01.08.2018 and the instant petition was filed on 07.08.2020 whereas for a period of more than 2 years, the petitioner never approached the learned Trial Court to know the status of the civil suit. Therefore, an inference can be drawn against the petitioner that the application for withdrawal was moved on his own instance and therefore, he did not appear before the learned Trial Court in 5 the proceedings of the civil suit for two years. 10. Further, the petitioner failed to make any complaint against the advocate who moved the application for withdrawal of the counter claim, even though no complaint was made before the concerned Court making an allegation as stated in the present petition. 11. Taking into consideration the above-stated facts, no case is made out for interference. 12. Consequently, this petition fails and is hereby dismissed. No cost(s). Rekha Sd/- (Rakesh Mohan Pandey) Judge