Durga Prasad Vs. Rammu @ Ramlal - Court Judgment

SooperKanoon Citationsooperkanoon.com/1053816
CourtMadhya Pradesh High Court
Decided OnNov-02-2012
AppellantDurga Prasad
RespondentRammu @ Ramlal
Excerpt:
1 w.p.no.8732 o”02. 11.2012 shri ajay kumr jain, counsel for the petitioners.he is heard on the question of admission. the petitioners/plaintiffs have filed this petition under article 227 of the constitution of india for quashment of the order dated 16.5.12 (annex.p/1) passed by the i adj.damoh in mj.no.16/11 whereby their application filed under order 23 rule 3 read with section 151 of the cpc for setting aside the order and decree dated 18.10.04 passed by the same court of i adj.damoh on the ground of obtaining the same by practicing the fraud, has been dismissed. initially the case was argued at lengthy by referring the papers placed on the record on admission but on asking the petitioners counsel that how the aforesaid decree passed in co.no.2-a/02 annex.p/3 could have been challenged by way of an application under order 23 rule 3 of the cpc and how the the impugned proceeding was entertainable before the trial court, on which, instead to argue further he seeks permission to withdraw this petition with liberty to file the appropriate suit for declaration and perpetual injunction along with some other available relief permissible under the law for setting aside the impugned order and decree annex.p/3 on the ground of alleged fraud which was committed by some of the plaintiffs and defendants of the matter. considering his prayer, without expressing any opinion on merits of the matter, only on aforesaid technical ground, the petition is hereby dismissed as not pressed with liberty to file the civil suit as prayed. it is specifically observed that the impugned order has been passed in the proceedings which was not entertainable, hence any findings given in such order shall not come in the way of the petitioners in filing the aforesaid civil suit. pursuant to it, the concerning court is also directed that if the aforesaid suit is filed on behalf of the petitioners under the aforesaid liberty then the same be entertained, tried and decided without being influenced from any observation and findings given by the trial court in the order impugned. c.c as per rules. (u.c.maheshwari) judge mkl
Judgment:

1 W.P.No.8732 o”

02. 11.2012 Shri Ajay Kumr Jain, counsel for the petitioneRs.He is heard on the question of admission.

The petitioners/plaintiffs have filed this petition under Article 227 of the Constitution of India for quashment of the order dated 16.5.12 (Annex.P/1) passed by the I ADJ.Damoh in MJ.No.16/11 whereby their application filed under Order 23 rule 3 read with section 151 of the CPC for setting aside the order and decree dated 18.10.04 passed by the same court of I ADJ.Damoh on the ground of obtaining the same by practicing the fraud, has been dismissed.

Initially the case was argued at lengthy by referring the papers placed on the record on admission but on asking the petitioners counsel that how the aforesaid decree passed in Co.No.2-A/02 Annex.P/3 could have been challenged by way of an application under Order 23 rule 3 of the CPC and how the the impugned proceeding was entertainable before the trial court, on which, instead to argue further he seeks permission to withdraw this petition with liberty to file the appropriate suit for declaration and perpetual injunction along with some other available relief permissible under the law for setting aside the impugned order and decree Annex.P/3 on the ground of alleged fraud which was committed by some of the plaintiffs and defendants of the matter.

Considering his prayer, without expressing any opinion on merits of the matter, only on aforesaid technical ground, the petition is hereby dismissed as not pressed with liberty to file the civil suit as prayed.

It is specifically observed that the impugned order has been passed in the proceedings which was not entertainable, hence any findings given in such order shall not come in the way of the petitioners in filing the aforesaid civil suit.

Pursuant to it, the concerning court is also directed that if the aforesaid suit is filed on behalf of the petitioners under the aforesaid liberty then the same be entertained, tried and decided without being influenced from any observation and findings given by the trial court in the order impugned.

C.C as per rules.

(U.C.Maheshwari) Judge MKL