Case Note & Summary
The petitioner entered into an agreement of sale dated 6.7.2005 for purchase of agricultural land from respondent nos. 2 and 3 for Rs.15,00,000/-, paying Rs.13,00,000/- as earnest money and receiving possession. Mutation entry was recorded in her name. Due to a dispute in the Tahsil office, the registered sale deed could not be executed, and the vendors avoided execution. The petitioner through her advocate R.D. Thombare and respondent no.1 (an advocate and husband of her father's sister) filed Special Civil Suit No. 23 of 2007 before the Civil Judge, Senior Division, Jalna for specific performance. The petitioner alleged that respondent no.1 did not take efforts to serve summons on the vendors. After the death of her mother on 1.5.2007, respondent no.1's attitude changed. The petitioner contended that respondent no.1, taking advantage of close relations and the petitioner's trust, got her to sign documents under pretense of suit necessity, which were later discovered to be a power of attorney in favour of his son (respondent no.4). Respondent no.1 then got a registered sale deed of the suit property executed from the petitioner's father in favour of his son and wife, allegedly without consideration and possession. The petitioner further alleged that respondent no.1 withdrew the suit on 6.9.2007 without her knowledge or consent. Upon learning of the withdrawal, the petitioner filed a restoration application (MARJI No. 34 of 2008), which was dismissed on 17.11.2008. The petitioner then filed this writ petition under Article 227 of the Constitution of India challenging both orders. The respondent no.1 claimed that the petitioner had instructed withdrawal in presence of her father and that the power of attorney was valid. The petitioner denied the allegations and submitted that her father's second marriage estranged their relationship, and his testimony could not be relied upon. The judgment text provided is incomplete, ending before the court's reasoning and final decision; thus, the outcome and ratio are not available.
Issue of Consideration
Whether the withdrawal of the suit by the advocate without instructions from the plaintiff is binding; Whether the power of attorney executed by the plaintiff in favour of the son of the advocate was obtained by fraud; Whether the lower court was justified in dismissing the application for restoration of the suit
Law Points
- Withdrawal of suit without plaintiff's instructions is invalid
- Power of attorney obtained by fraud does not authorize withdrawal
- Advocate must act bonafide and in client's interest
- Order XXIII Rule 1 CPC requires plaintiff's own application or express consent
- High Court can exercise supervisory jurisdiction under Article 227 to prevent miscarriage of justice
- Fraud vitiates all proceedings
Case Details
2013 LawText (BOM) (12) 45
Writ Petition No. 4712 of 2009
Shri V.D. Salnuke for petitioner; Shri K.B. Jadhavar for respondent no.1; Shri S.H. Jagiasi for respondent nos. 2 and 3; Shri S.B. Bhapkar for respondent nos. 4 and 5
1. Zingaraji s/o Bajaba Misal, 2. Vijayabai w/o Vyankatayya Kotagiri, 3. Anjali d/o Vyankatayya Kotagiri, 4. Mahendra s/o Zingaraji Misal, 5. Radhabai w/o Zingaraji Misal
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Nature of Litigation
Civil writ petition challenging orders allowing withdrawal of suit and dismissal of restoration application in a specific performance suit
Remedy Sought
Petitioner sought to quash the order dated 6.9.2007 allowing withdrawal of Special Civil Suit No. 23 of 2007 and the order dated 17.11.2008 dismissing MARJI No. 34 of 2008, and to restore the suit
Filing Reason
Petitioner alleged that her advocate and relative, respondent no.1, fraudulently got her to sign a power of attorney for his son and then withdrew the suit without her instructions, and the lower court failed to consider the fraud
Previous Decisions
Civil Judge Senior Division, Jalna, allowed withdrawal of suit on 6.9.2007 and dismissed restoration application on 17.11.2008
Issues
Whether withdrawal of suit by advocate without plaintiff's instructions binds plaintiff
Whether power of attorney executed in favour of advocate's son was obtained by fraud and is void
Whether dismissal of restoration application by trial court was proper in light of fraud allegations
Submissions/Arguments
Petitioner contended that respondent no.1, her advocate and relative, misused his position to make her sign documents, including a power of attorney, and withdrew the suit without her consent, amounting to fraud.
Respondent no.1 claimed that the petitioner herself directed him to withdraw the suit in presence of her father, and the power of attorney was executed voluntarily.
Petitioner argued that the power of attorney cum transfer deed was void ab initio due to misrepresentation and lack of understanding, and the withdrawal of suit was illegal.
Petitioner further submitted that the lower court failed to examine the evidence of fraud and gave undue weight to the advocate's assertions.
Judgment Excerpts
It is the case of the petitioner that respondent no.1 by playing fraud on the petitioner executed the sale deed in favour of his son and wife and also withdrew the suit filed by the petitioner without her instructions and knowledge.
It is the case of the petitioner that the said document is creature of fraud played by respondent no.1 on the petitioner.
suit is withdrawn without any instructions and with an intention to grab the suit property.
Procedural History
Agreement of sale executed on 6.7.2005; mutation entry recorded; notice to vendors to execute sale deed; Special Civil Suit No. 23 of 2007 filed for specific performance in the court of Civil Judge Senior Division, Jalna; suit withdrawn on 6.9.2007; restoration application MARJI No. 34 of 2008 filed; dismissal of restoration application on 17.11.2008; present writ petition filed in 2009 under Article 227.
Acts & Sections
- Code of Civil Procedure, 1908: Order XXIII, Rule 1
- Constitution of India: Article 227
- Indian Evidence Act, 1872:
