Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.     8407       OF 2009 (Arising out of S.L.P. (Civil) No. 8853 of 2007)

Dwarika Prasad ... Appellant

Versus

Nirmala and others        ...Respondents

J U D G M E N T

J.M. PANCHAL, J.

Leave granted.

2. 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. 122 of 2005, by which order dated  

May  5,  2005,  passed  by  the  learned  First  Additional  

District Judge, Gwalior in MJC No. 3 of 2004 allowing  

the  application  filed  by  the  respondent  No.  1  under  

Order IX Rule 9 read with Section 151 of the Code of  

Civil Procedure is confirmed 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. 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which was dismissed as withdrawn on February 28, 1997,  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.

3. The relevant facts emerging from the record of the case  

are as under:

Late Mr. Shankar Lal, who was father of the respondent  

No. 1, filed Civil Suit No. 11 of 1955 for partition of the joint  

properties.  The said suit was decreed on July 10, 1978.  Feeling  

aggrieved, the appellant preferred First Appeal No. 60 of 1978  

before the High Court.  The learned single Judge of the High  

Court set aside the decree passed by the trial court and remanded  

the matter to the trial court for fresh decision vide order dated  

September 30, 1991.  Against the order of remand, LPA No. 32 of  

1991 was filed by father of the respondent No.1.  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.  The LPA was dismissed as withdrawn on the same date, i.e.,  

February 24, 1997.  In the year 1996 Civil Suit No. 11 of 1955  

filed for partition of the joint properties was given new number  

as 3A of 1996.  On February 28, 1997 another application was  

filed for withdrawal of Civil Suit No. 3A of 1996 by the father  

of the respondent No. 1.  In view of the contents of the said  

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application the Civil Suit was also dismissed as withdrawn on the  

same  date,  i.e.,  on  February  28,  1997.   On  August  11,  1998,  

father of the respondent No. 1 expired.  The respondent No.1  

filed an application on September 2, 1998 for recalling the order  

dated February 24, 1997, passed in LPA No. 32 of 1991.  There was  

delay in filing the application seeking recall of order dated  

February 24, 1997.  Therefore, another application was filed for  

condonation  of  delay.   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 not bear the signature of her father  

and, thus, signature of her father was forged.  It was mentioned  

in the application that Mr. J.P. Sharma, advocate, had noted his  

appearance on behalf of her father in Civil Suit No. 3A of 1996  

subsequently without seeking no objection certificate from the  

previous counsel, 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  High  Court  heard  the  

learned counsel for the parties and by order dated January 10,  

2005 condoned 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.  1  for  recalling  order  dated  February  24,  1997.   While  

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allowing the application filed by respondent No. 1 the High Court  

observed that a fraud was played upon the Court and directed the  

Registrar of the Court to file a complaint against Advocate Mr.  

J.P. Sharma and also against Advocate Mr. S.C. Goyal, who had  

identified the signature of late father of the respondent No. 1.  

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 complaint.

4. 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  

complaint against them by filing Special Leave Petition  

No. 1546 of 2005 before this Court.  The said Special  

Leave Petition was dismissed on April 15, 2005 by this  

Court in the following terms: -

“Permission to file SLP is granted.

We see no reason to interfere.

The  Special Leave  Petition is  dismissed save  and  except we clarify that the observations of the High  Court shall not be taken into consideration in any  proceedings.”

Thus, the direction given by the High Court to initiate criminal  

proceedings  against  Mr.  J.P.  Sharma  and  Mr.  S.C.  Goyal  was  

upheld.

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5. LPA No. 32 of 1991 was, therefore, posted for hearing  

on merits before the High Court.  The High Court, by  

judgment  dated  August  17,  2005,  dismissed  the  said  

appeal holding that the LPA was not maintainable.  As  

the Division Bench of the High Court held that the LPA  

was  not  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. 60 of 1978  

remanding  the  matter  to  the  trial  court  for  fresh  

decision.  This Court, vide order dated November 21,  

2005, condoned the delay caused in filing the S.L.P.  

and dismissed the Special Leave Petition.  This Court  

also directed expeditious disposal of the suit.  Thus  

order of remand dated September 30, 1991 was upheld by  

this Court.   

6. The  respondent  No.  1  had  filed  an  application  on  

September 17, 1998 for restoration of Civil Suit No.  

3A  of  1996,  which  was  dismissed  as  withdrawn  on  

February  28,  1997.   On  August  23,  2001  the  said  

application for restoration was dismissed for default.  

Therefore, the respondent No. 1 filed an application  

for setting aside the order dated August 23, 2001 and  

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for restoration of the application seeking restoration  

of the Civil Suit No. 3A of 1996.  The subsequent  

application was also dismissed for default on December  

16,  2003.   The  respondent  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.  On January 18, 2005 the respondent No. 1  

filed an application for restoration of Civil Suit No.  

3A of 1996 contending 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 trial court by order  

dated  May  5,  2005  allowed  the  application  of  the  

respondent No. 1 for restoration of Civil Suit No. 3A  

of  1996.   The  appellant,  therefore,  filed  Civil  

Revision No. 122 of 2005 before the High Court.  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.

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7. This  Court  has  heard  the  learned  counsel  for  the  

parties  at  length  and  considered  the  record  of  the  

case.  The argument that the respondent No. 1 was not  

entitled to file application for restoration of the  

suit filed by her late father, as right to sue did not  

survive  in  favour  of  the  respondent  No.  1  has  no  

merit.  It is well settled that where the right to sue  

is personal to the deceased, the same does not survive  

for the benefit of his legal representatives.  There  

is  no  manner  of  doubt  that  late  father  of  the  

respondent No. 1 had filed suit for partition of the  

joint properties.  On his death right to sue survived  

and the respondent No. 1 being his daughter and legal  

representative was entitled to continue the suit in  

view of the provisions of Hindu Succession Act.  The  

deceased who was a male Hindu, claimed interest in the  

joint properties which are subject matter of suit for  

partition.  The record does not indicate that he had  

executed a Will though the appellant claimed that he  

had executed a Will in favour of Vijai Kumar.  It may  

be mentioned that the said Vijai Kumar has not applied  

for being impleaded as a party to the proceedings nor  

claimed interest in the properties of the deceased.  

He,  having  died  intestate,  his  share  in  the  joint  

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properties  shall  devolve  by  intestate  succession  as  

provided  by  Section  6  of  the  Hindu  Succession  Act,  

1956.  Section 8 of the said Act which deals with  

general  rules  of  succession  in  the  case  of  males,  

inter alia, provides that the property of a male Hindu  

dying intestate shall devolve firstly upon the heirs,  

being relatives specified in Class I of the Schedule  

to the Act.  A daughter is specified as one of the  

relatives  in  Class  I  of  the  Schedule.   Therefore,  

there is no manner of doubt that the share of the  

deceased  plaintiff  in  the  suit  properties  would  

devolve upon her, if suit for partition is decreed.  

Rule 3 of Order XXII CPC, inter alia, stipulates that  

when  a  sole  plaintiff  dies  and  the  right  to  sue  

survives,  the  Court  on  an  application  made  in  that  

behalf, should cause the legal representative of the  

deceased  plaintiff  to  be  made  a  party  and  shall  

proceed with the suit.  Thus, the respondent No.1 was  

entitled to be substituted in place of her deceased  

father.  The record shows that she came to know later  

on that fraud had been committed while getting Civil  

Suit No. 3A of 1996 dismissed as withdrawn.  Hence,  

she was entitled to file application for restoration  

of the suit.  Thus, it is not correct to argue that  

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the  respondent  No.  1  was  not  entitled  to  file  

application for restoration of the suit filed by her  

father for partition of the joint properties.

8. The contention that having regard to the circumstances  

emerging from the record of the case the trial court  

should not have restored the Civil Suit No. 3A of 1996  

on file, is devoid of merits.  What is important to  

notice  is  that  on  similar  grounds,  namely,  fraud  

committed while getting LPA No. 32 of 1991 dismissed  

as withdrawn, the said LPA was restored on file.  As  

mentioned earlier it was held by the High Court that  

fraud was played upon the court 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.  The appellant never challenged the said  

order at all.  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.  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.  

The Trial Court, while deciding the application for  

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restoration of suit, could not have afforded to ignore  

the findings recorded by the High Court while setting  

aside the order dismissing the LPA No. 32 of 1991 as  

withdrawn  and  the  two  orders  passed  by  this  Court.  

Once it was noticed by the trial court that LPA No. 32  

of  1991  was  restored  on  file  on  the  ground  that  

signature of late father of the respondent No. 1 was  

forged, it was duty bound to follow the reasons given  

by the High Court for restoring LPA No. 32 of 1991 on  

file.  This Court notices that in MJC No. 3 of 2004  

the respondent No. 1 had prayed for setting aside the  

order dated December 16, 2003 by which MJC No. 29 of  

2003  was  dismissed,  but  the  learned  Judge  of  trial  

court while setting aside the order dated December 16,  

2003  also  restored  MJC  No.  25  of  1998  because  an  

application was filed praying to decide all the MJCs  

together.

9. By restoration of MJC No. 25 of 1998 and MJC No. 35 of  

1998  (29  of  2003),  no  substantive  right  of  the  

appellant is decided by the trial court.  What is done  

is to restore the suit, which was got dismissed as  

withdrawn by fraud.  The argument that the Trial Court  

had acted with material irregularity while restoring  

the suit when two applications which were dismissed  

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for  default  were  also  restored  and,  therefore,  the  

Revision  filed  by  the  appellant  should  have  been  

allowed,  is  merely  stated  to  be  rejected.   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.   The  appellant  who  was  

beneficiary of fraud played upon the Trial Court and  

the  High  Court  would  not  be  entitled  to  invoke  

discretionary jurisdiction of High Court under Section  

115  CPC.   Further  in  view  of  prayer  made  in  the  

application,  all  the  applications  filed  by  the  

respondent No.1 were taken up for hearing together.  

Under  the  circumstances,  this  Court  is  of  the  firm  

opinion  that  the  High  Court  was  justified  in  not  

interfering with the order by which MJC No. 25 of 1998  

and  MJC  No.  35  of  1998  were  also  restored  while  

allowing MJC No. 3 of 2004 filed by the respondent No.  

1 for setting aside order dated December 16, 2003 by  

which MJC NO. 29 of 2003 was dismissed for default

10. 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  

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called application for withdrawal filed by father of  

the respondent No. 1.  Before dismissing the suit as  

withdrawn, the trial court had not issued any notice  

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  

consent from the advocate who was earlier representing  

the deceased.  No attempt was made by the trial court  

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 court for fresh decision was subject-matter  

of LPA No. 32 of 1991.  On the facts of the case, this  

Court finds that a grave error was committed by the  

trial court by dismissing the suit for partition as  

withdrawn.  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 no locus to object to  

the  restoration  of  the  suit.   What  is  relevant  to  

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notice is that the late father of the respondent No. 1  

did not claim any exclusive title to the properties in  

himself.  He claimed partition of the properties as  

one of the joint owners.  Initially, the suit was not  

only decreed in his favour but also in favour of the  

third brother.  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.  Therefore,  

the suit for partition of the joint properties, filed  

by the late father of respondent No. 1, could not have  

been dismissed as withdrawn without notice to another  

brother,  who  was  also  entitled  to  share  in  the  

properties.  Taking over all view of the matter, this  

Court  finds  that  no  illegality  or  irregularity  is  

committed by the High Court in dismissing the Revision  

Petition filed by the appellant.  The High Court has  

confirmed the order of the learned Additional District  

Judge, Gwalior, by which substantial justice is done  

to the parties.  Therefore, no case is made out by the  

appellant to interfere with the order passed by the  

High Court and, thus, the instant appeal is liable to  

be dismissed.

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11. For  the  foregoing  reasons  the  appeal  fails  and  is  

dismissed.  There shall be no order as to costs.

…………………………J.     [B. Sudershan Reddy]

…………………………J.                [J.M. Panchal]

New Delhi; December 17, 2009.

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