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TMI Blog2002 (6) TMI 608X X X X Extracts X X X X X X X X Extracts X X X X ..... irdly, on the ground that the impugned order is a non-speaking order. 3. The facts, relevant for the decision are that the premises in question undisputably belong to M/s. Mahadkar Construction Private Limited. It is the case of the petitioners that they were allowed to run business therein and consequently had established restaurant which was allowed to be conducted by the respondent under the agreement dated 5th October 1992. Since the respondent failed to comply with the terms and conditions of the agreement regarding payment of compensation, the petitioners terminated the agreement on 8th April, 1999. Pursuant thereto, the respondent filed R.C.S. no. 250/1999 in the Small Causes Court. Pune for injunction and obtained ex parte order of status quo on 12th April. 1999. After hearing the parties, the order of status quo was vacated and the application for temporary injunction filed by the respondent was dismissed by the trial Court on 26th April, 1999, holding that the petitioners were in control of the suit premises. The respondents preferred Civil Misc. Appeal No. 183/1999 against the order of rejection of temporary injunction and also prayed for restoration of possession of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seeking permission to withdraw the suit to enable him to file a fresh suit on the same cause of action as well as for the purpose of the recovery of compensation and for various other purposes. The said application was filed on 29th November 1999. The petitioners by their reply to the same objected for unconditional withdrawal and insisted for restoration of possession of the suit premises to be made condition precedent for the withdrawal of the suit. The trial Court, however, by the impugned order allowed the respondent to withdraw the suit without any condition. The order passed in that regard, reads thus : Looking into the para 8. No permission is necessary. Withdrawal allowed. Sd/- 21-1-2000. Meanwhile, on 8-12-1999, the respondent filed pursis in the District Court in Misc. Civil Appeal No. 183/1999 to the effect that he did not want to continue with the Misc. Civil Appeal as he was going to withdraw the original Civil Suit itself. The lower appellate Court by an order dated 23rd March 2002 permitted withdrawal of the Appeal. As regards Exh. 53, which was filed by the petitioners in the said Misc. Civil Appeal No. 183/99, the same was rejected holding that in view of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ession of the suit premises with the petitioners which was sought to be disturbed by way of interim arrangement during the pendency of the appeal, which was to the advantage of the respondent and in case the respondent wanted to withdraw the suit at that stage, he should have been ordered to restore status quo ante before withdrawing the suit. Even assuming that the right of plaintiff under Order 23 Rule 1 of CPC for withdrawal of the suit be absolute, according to the Advocate for the petitioners, the matter having reached at the stage when there was a finding in favour of the petitioners, withdrawal could not have been allowed without restoring the possession of the suit premises to the petitioners as the respondent had obtained the possession of the suit premises under the guise of the execution of the order passed by the Court during the pendency of the suit. Reference is also made to the decision of the Apex Court in K. S. Bhoopathy v. Kokila reported in (2000) 5 SCC 458 in that regard, On the other hand, the learned Advocate for the respondent has submitted that admittedly the petitioners were not in possession of the suit premises on and from 29th April, 1999. the same havin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. Apparently, therefore, when the plaintiff claims to abandon or withdraw the suit, without any leave to bring fresh suit on the same cause of action, he cannot be compelled to continue with the suit, except imposition of costs and consequences which may follow from such withdrawal as regards the bar to file fresh suit on the same cause of action in respect of the same subject-matter. The Apex Court in K. S. Bhoopathy's case has, in fact, held that a plaintiff can abandon a suit or abandon a part of his claim as a matter of right without permission of the Court and in that case he is precluded from suing again on the same cause of action and neither can the plaintiff abandon a suit or part of the suit reserving himself a right to bring a fresh suit nor can the defendant insist that the plaintiff must be compelled to proceed with the suit. It has also been further observed that an application by a plaintiff under Sub-rule (3) cannot be treated on a part with an application by him under Sub-rule (1). 6. The Apex Court in R. Satyamoorthy's case has observed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er passed at the appellate stage but subsequent to handing over of possession of the suit premises by the Petitioners to the owners thereof. Being so, the ratio of the ruling of the Apex Court, can be of no help to the petitioners in the case in hand. Besides, the ruling of the Apex Court is to the effect that, If any such finding by the trial Court in favour of the defendant would get nullified such permission for withdrawal of the suit should not be granted. The facts of the case in hand, disclose that by withdrawing the suit, no finding in favour of the Petitioners is sought to be nullified. 7. In Kedar Nath's case the High Court of Allahabad was dealing with a matter when the same was at the stage of second Appeal. In Vidyadhar Dube's case the ruling of the Allahabad High Court was to the effect that the right of the plaintiff to withdraw the suit at appellate stage, is not an absolute right and is subject to the rights acquired by the defendant under the decree. In Jubedan Begum's case the ruling of the Punjab and Haryana High Court is to the effect that, the words at any time in Order 23 Rule 1, would apply to the suit pending in the trial Court and onc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntiff to seek restoration of the possession of the suit premises from the respondent. 9. It was also contended that the possession obtained by the respondent on 17th May, 1999, was by playing fraud upon the Court and by illegally obtaining police force and that, therefore, the same is required to be restored to the petitioners. However, while seeking this relief even before the lower appellate Court, the petitioners had nowhere claimed that the petitioners were in possession of the suit premises, at the time the same was taken over by the respondent on 17th May, 1999. though they had specifically stated in their application that, these respondents further submit that these respondents have shut down the business and/or they have no intention to start the same. These respondents further submit that they have handed over possession to M/s. Mahadkar Constructions Pvt. Ltd.. who happen to be the owners of the suit premises. These respondents further submit that petitioners had taken possession of the suit premises forcibly and illegally through police force. There is not even averment to the effect that the possession of the premises was taken from the petitioners. Considering the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccasion for the respondent to seek possession from the petitioners only on account of payment of arrears claimed by the petitioners and which was ordered to be paid under order dated 12th August, 1999. Being so, the arguments in this regard are also devoid of substance. 12. Once it is established from the facts and the circumstances of the case, that the plaintiffs can abandon or withdraw the suit, such withdrawal being unconditional, the question of rejection of such request, does not arise and in the absence of any adjudication of any rights of the parties, the question of passing any speaking order for allowing to withdraw simpliciter does not arise. Hence, merely the order allowing the withdrawal simpliciter, does not disclose any reason for passing such order, it cannot be said that the same has been passed either by illegal or improper exercise of jurisdiction, so as to warrant interference in revisional jurisdiction. That part, it cannot be said that the impugned order is totally a non-speaking order as such. It does disclose reason for allowing the respondent to withdraw the suit. It clearly state that considering averment in para 8 of the application for withdrawal, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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