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9. Referring to the Division Bench Judgment of Calcutta High Court in rendered in the case of Rameshwar Sarkar Vs State of West Bengal , AIR 1986 Calcutta 19, the Supreme Court in the aforesaid judgment held that if the suit has been withdrawn through mistake, the court would not be powerless to set aside the order permitting the withdrawal of the suit and this can be so done in exercise of inherent powers under section 151 of the Code of Civil Procedure . Similarly in the case of State Bank of India Vs Firm Jamuna Prasad Jaiswal ( supra) , Allahabad High Court held that the application to withdraw the application for dismissing the suit as withdrawn would be maintainable , if the fraud is played upon the plaintiff. It further went on to say that the fraud as defined in the Contract Act means actual fraud. But in equity the courts have also developed the doctrine of 'constructive fraud'. Observations of the Allahabad High Court in paragraph No. 12 are note worthy and the same are reproduced hereunder:

Patch v. Ward cited in Mahomed Golab v. Mahomed Sulliman."

Fraud as defined in the Contract Act means actual fraud. But in equity the Courts have also developed the doctrine of 'constructive fraud.' The following extract from Snell's Principles of Equity, Chapter 6, Part II, pages 545 on the concept of 'constructive fraud' is being quoted: . .

While examining the question whether a fraud had been played upon the Bank in making the application for withdrawal it is fraud the Bank in making the application for withdrawal it is fraud in this wider sense of 'constructive fraud', which defines definition which has to be taken into account. If the result dismissing the Bank's application would be to close an unconscionable transaction in favour of the respondent wrested by it unscrupulously the Court would be slow in dismissing the application. While it can be contended that in the case of compromise decree, the narrower concept of fraud defined in Section 17 of the Contract Act be applied because it is after all a compromise which is in the nature of contract which is assailed the same cannot be said in respect of unilateral transaction of withdrawal. In the latter case the doctrine of 'constructive fraud' has to be applied.'

10. In the context of case law aforementioned when the order impugned is examined, it is apparent from the pleadings of the parties that while the suit between the parties was pending , there was settlement, whether we call it an oral agreement or compromise, to settle the dispute subject matter of adjudication in the suit. While filing their response to the application moved by the respondents for recalling of the order, the petitioner has not denied the agreement. That being so, the learned Trial Court was right in inferring that the respondents were persuaded to withdraw their suit on being induced by sheer misrepresentation which was not intended to be acted upon by the petitioner. Needless to say that for making false representation or inducing somebody to do a particular thing in a particular manner, one does not need a written instrument. Such representation or inducement can be oral or even inferable from conduct of a person making it. In the instant case, the Trial Court had not passed a compromise decree but had dismissed the suit as not pressed. The plea of learned counsel for petitioner based on the provisions of Order 23 Rule 3 is not legally tenable. It is, thus, apparent that the respondents believed the petitioner and abandoned their suit. It is not correct to say that the order of dismissal of suit as withdrawn can be recalled only in case of a proved fraud but the same can be recalled by the court, ex- debit justicia , if it is satisfied that the withdrawal of the suit was engineered by the defendants by deceit which would include constructive fraud, inducement and misrepresentation. The learned Trial Court has taken into consideration the aforesaid aspects and has correctly recalled the order of withdrawal by passing the impugned order. The impugned order therefore, does not suffer from any material irregularity nor can the same be said to have caused failure of justice. The Trial Court has exercised the jurisdiction vested in it within four corners of law.