MAHADKAR AGENCY Vs. PADMAKAR ACHANNA SHETTY

JUDGEMENT

(1.) HEARD the learned Advocate for the parties. Perused the records.

(2.) THE petitioners challenge the order dated 21st January, 2000, passed by the trial Court in Civil Suit No. 250/1999, allowing the respondent to withdraw the suit. The challenge is mainly three folds, firstly, that the withdrawal of the suit has been allowed ignoring the advantage gained by the respondent during the pendency of the proceedings in relation to the subject matter of the suit by virtue of the order of the Court; secondly, by ignoring the fact that there was already a finding arrived at by the same court regarding the possession of suit premises with the petitioners and the same was in favour of the petitioners and the matter regarding adjudication of the said finding was pending at the appellate Court and thirdly, 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 un-disputedly 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 the suit premises, as according to the respondent he was dispossessed from the suit premises on 28th April, 1999 taking undue advantage of the order dated 26th April 1999 whereby the injective relief was refused to the respondent by the trial Court, whereas it is the case of the petitioners that they were already in possession of the suit premises and the said fact stands confirmed by the order of the trial Court passed on 26th April, 1999. It is further case of the petitioners that they delivered the possession of the suit premises to the owners thereof, namely, m/s. Mahadkar Construction Pvt. Ltd. on 29th April, 1999. The Additional District judge in Civil Misc. Appeal No. 183/1999 allowed Exh. 4 filed by the respondent, for restoration of possession of the suit property by another order dated 10th May, 1999. It is the case of the respondent that pursuant to the said order he took the possession of the suit premises on 17th May, 1999 whereas it is the case of the petitioners that the order of 10th May 1999 was sought to be executed illegally with the help of police force without obtaining necessary order from the Court for police protection for the purpose of execution of the said order. The petitioners thereafter preferred C. R. A. No. 666/ 1999 challenging the order dated 10th May 1999 and this Court set aside the said order and remanded the matter to the lower appellate Court with the direction to hear afresh the matter bearing in mind the terms of the agreement dated 3rd July 1988. The district Court by an order dated 12th August 1999 disposed of the Exh. 4 by fresh order directing the respondent to deposit the amount of Rs. 13,43,316/- within five week and for continuation of order of injunction subject to deposit of the said amount within the specified period. The said order was sought to be challenged by the respondent in C. R. A. No. 998/1999, but without any success as the same was dismissed on 15th october, 1999. Thereafter, the petitioners filed Ex. 53 Misc. Civil Appeal No. 183/1999 before the District Court on 22nd November 1999, complaining of failure on the part of the respondent to comply with the order dated 12-8-1999 and consequently for direction to the respondent to handover the possession of the suit premises to the petitioners. On the other hand, the respondent filed an application before the trial Court being Reg. Civil Suit No. 250/1999 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 :