Rajiv Sahai Endlaw JUDGMENT
Rajiv Sahai Endlaw, J.
1. This petition under Article 227 of the Constitution of India impugns the order [dated 12th December, 2016 in CS No. 380/2015 of the Court of the Civil Judge (North), Rohini Courts, Delhi] of dismissal of the application filed by the petitioner/plaintiff under Order XL VII Rule 1 of the Code of Civil Procedure, 1908 (CPC) for review of the order dated 23rd January, 2016 in the suit.
2. The petition came up first before this Court on 28th February, 2017 when notice thereof was ordered to be issued.
3. The counsels were heard on 8th September, 2017 and order reserved.
4. The petitioner/plaintiff, acting through her Special Power of Attorney Holder Sh. Rajpal Singh, on 7th December, 2015 instituted the suit from which this petition arises (i) for declaration that the Will dated 6th May, 1986 and other documents (if any) executed by the respondents/defendants no. 1 and 2 viz. Sukhbir Singh Chauhan and Balkishan in favour of respondents/defendants no. 3 and 4 viz. Naresh Kumar and L.G. Real Estate L.L.P. on the basis of the said Will qua agricultural land in Revenue Estate of village Bakoli, Delhi are null and void as the same are forged and fabricated, obtained by playing a fraud upon the petitioner/plaintiff, and, (ii) for permanent injunction restraining the respondents/defendants from disturbing the possession of the petitioner/plaintiff of the said agricultural land.
5. On 23rd January, 2016, the counsel for the petitioner/plaintiff along with Sh. Rajpal Singh, Special Power of Attorney (SPA) holder of the petitioner/plaintiff appeared before the Court of the Civil Judge before whom the suit was pending and stated that the petitioner/plaintiff had already settled the matter with the respondents/defendants out of Court and did not wish to pursue the suit any further; an application under Order XXIII Rule 1 of the CPC for withdrawal of the suit had also been filed on 21st December, 2015.
6. The learned Civil Judge, before whom the suit was pending, recorded the statement on oath of Sh. Rajpal Singh, SPA holder of the petitioner/plaintiff and dismissed the suit as withdrawn.
7. Thereafter on 24th February, 2016, the application aforesaid under Order XLVII Rule 1 of the CPC for review of the order dated 23rd January, 2016 was filed, pleading (i) that the order dated 23rd January, 2016 was obtained, by playing fraud upon the Court as well as upon the petitioner/plaintiff, by the defendants/respondents in collusion and connivance with the previous SPA holder of the petitioner/plaintiff; (ii) that the Court while dismissing the suit as withdrawn on 23rd January, 2016 failed to look into the SPA dated 14th January, 2016 issued by the petitioner/plaintiff in favour of Sh. Pradeep Kumar and which was placed on record of the suit on 18th January, 2016 along with fresh Vakalatnama; and, (iii) that thus the action of the Court on 23rd January, 2016 of, on the basis of the statement and application of the earlier advocate of the petitioner/plaintiff and the earlier SPA holder of the petitioner/plaintiff, dismissing the suit as withdrawn was an error apparent on the face of the record.
8. Needless to state, the respondents/defendants contested the application aforesaid for review. It was inter alia contended that the suit could not be restored through an application for review. It was yet further contended that it was the so called new attorney Pradeep Kumar of the petitioner/plaintiff who was playing a fraud on the Court and that without anything to sh........