No Indulgence To Inactive Party: Rajasthan High Court Refuses To Restore Suit Withdrawn On Compromise Citing Parties' Silence For 20 Yrs

Rejecting a time-barred restoration application filed by two out of nine plaintiffs in the original suit pertaining to a property dispute which was dismissed based on compromise, the Rajasthan High Court said that the silence of the remaining seven plaintiffs for over 2 decades was seen as acquiescence and tacit endorsement.

Justice Arun Monga was hearing the appeal filed against Trial Court's order wherein the restoration application filed by the respondents was allowed.

"The defendants case is that a settlement was arrived with the plaintiffs. It was pursuant to this compromise that the plaintiffs' counsel withdrew the suit. Notably, seven plaintiffs have never contested this fact. Their silence over such a material issue for over two decades supports the inference of a concluded compromise and deliberate and intentional withdrawal of the suit. The assertion by the defendants that a settlement had been reached—followed by payment and subsequent withdrawal—finds substantial support in the silence of seven plaintiffs for over two decades. Their silence, when they were neither minor nor infirm, amounts to acquiescence. Courts view long-standing silence on material issues as tacit endorsement. In this case, it strongly reinforces the inference that the withdrawal was a part of a concluded compromise, thereby making the attempt at restoration unjust and disruptive to settled expectations". 

 The original suit that was filed by 9 plaintiffs (including the two respondents) reached a compromise based on which the withdrawal application was filed, and it was dismissed in 2004.

Two years after dismissal, a restoration application was filed by both the respondents (plaintiffs before trial court), challenging the alleged compromise as well as the withdrawal of the suit. These applications moved by the respondents was allowed by the Additional District Judge, against which the appellants moved the high court. 

The appellants contended that the restoration plea under CPC was not maintainable where the suit was withdrawn or dismissed based on a compromise; if compromise is alleged to be fraudulent, the remedy lies in a separate suit.

The respondents argued that the suit was withdrawn by the counsel without their instructions or consent, and the delay in filing the restoration application was because they were not aware of the suit's dismissal.

After hearing the contentions, the Court said:

“The suit was dismissed on 01.06.2004 on the basis of an application for withdrawal submitted by the plaintiffs' counsel. Out of the nine plaintiffs, only two—namely, Smt. Madhu Rathi (Respondent no.1) and Smt. Vijay Laxmi (Respondent no.3)—filed two separate applications for restoration. The remaining seven plaintiffs neither objected to the withdrawal at any time nor have raised any grievance since. The logical inference is that the withdrawal was undertaken on the collective instructions of the plaintiffs, or at the very least, with their knowledge and tacit consent...Their silence over such a material issue for over two decades supports the inference of a concluded compromise and deliberate and intentional withdrawal of the suit".

The court further noted that even now it appeared that the respondent no. 3 was not interested to pursue the lis and has abandoned her cause, since despite service, none appeared for her.

Secondly, the Court opined that despite living in the same city where the litigation was pending, the fact that the respondents did not came to know about the dismissal defied both judicial expectations of diligence as well as ordinary prudence that for over two years no attempt was made to contact the counsel regarding the case's progress.

The court said:

"it is undisputed that eight out of nine plaintiffs—including the two applicants—resided in Jodhpur, where the suit was pending. The two applicants' claim that they came to know of the dismissal more than two years later— despite living in the same city where the litigation was pending— defies both logic and judicial expectations of diligence. Trite it may sound but the parties must demonstrate a minimum level of vigilance in prosecuting their claims. Indulgence cannot and ought not to be granted to a party which has been negligent or inactive for inordinately long period. The applicants' (respondent no.1 and 3 herein) conduct fails this standard and reflects culpable indifference. It defies ordinary prudence that for over two years the applicants made no attempt to contact their counsel or co-plaintiffs regarding the progress of the case. Such prolonged inaction reflects gross negligence and absence of bona fide conduct on their part. No doubt, ordinarily, parties ought sign the compromise. However, the conduct of all the plaintiffs(including co-plaintiffs respondents no. 1 and 3 herein), coupled with long acquiesce, as already noted, is selfspeaking and a direct pointer to the out of court settlement"

The court observed that the respondents allegation that their advocate acted fraudulently and withdrew the suit without consent is nothing but a moonshine, taking advantage of the technicalities and a clear afterthought and that too belatedly. 

In this light, the Court further opined that the allegation of the counsel acting fraudulently and withdrawing the case without consent was an afterthought prompted, in all likelihood, due to internal disagreements amongst the plaintiffs. Vakalatnama executed by the plaintiffs unambiguously authorized the advocate to withdrew the suit.

“The unexplained delay of over two years by the two applicants, their failure to pursue legal remedies against their own counsel, and the complete absence of any corroborative material to support the claim of fraud all suggest that the restoration application was a belated and opportunistic attempt to reopen a settled matter,” it said.

It was finally held that restoration of suits was not a matter of right but discretion that had to be exercised judiciously by the court, and only where there was a clear showing of sufficient cause, promptness and bona fide. Court must guard against abuse of process, particularly when object seemed to disturb a settled compromise or resurrect stale claims.

Accordingly, the appeal was allowed.

Title: Pushp Chand v Smt. Madhu Rathi

Citation: 2025 LiveLaw (Raj) 254

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