CENTRAL INDIA MOTERS Vs. DEWASHISH

JUDGEMENT

(1.) Heard on IA No.10073/2007 which is an application for permission to withdraw the appeal. The application is seriously contested by the counsel for respondent No.4.

(2.) Short facts of the case are that a eviction suit was filed by the respondents No.1 to 3 under Section 12 (1) (b), (c) and (f) of the M.P. Accommodation Control Act, 1961 (which shall be referred hereinafter as "Act") wherein it was alleged that the appellant is tenant of respondents No.1 to 3 and respondent No.4 has been inducted by the appellant as sub-tenant, hence suit for eviction was filed. The suit was contested by appellant as well by respondent No.4. After framing of the issues and recording of evidence, learned Court below passed the decree against the appellant and respondent No.4 under Section 12 (1) (b) and (f) of the Act against which the appellant/tenant has filed the appeal. Respondent No.4 filed the appeal which is numbered as 80/2005.

(3.) The contention of learned counsel for the respondent No.4 is that the appellant has joined hands with respondents No.1 to 3. It is submitted that the suit property has already been sold by the respondents No.1 to 3 and to put the respondent No.4 in a embarrassing situation, they has been filed the application for withdrawal of the appeal. It is submitted that in the facts and circumstances the application should be dismissed. Reliance is placed on a decision in the matter of R. Rathinavel Chettiar Vs. V. Sivaraman (1999) 4 SCC 89 wherein in a case withdrawal of suit by plaintiff was prayed, after passing of decree, at appellate stage, it was held that it cannot be allowed by court as a matter of course when by virtue of such withdrawal vested or substantive rights of any party to the litigation will be adversely affected. It was further observed that where after passing of decree in favour of plaintiff, suit property was sold by plaintiff to a third party but defendant preferred appeal against the decree, plaintiff cannot seek to withdraw the suit at the appellate stage on ground of he having compromised the dispute with the original defendant, as that would result in nullifying the substantive right to the property acquired by the third party transferee. Further reliance was placed on a decision in the matter of K. S. Bhoopathy Vs. Kokila (2000) 5 SCC 458 wherein the Hon'ble Apex Court has observed that the Court is to discharge the duty mandated under the provision of the Code on taking into consideration all relevant aspects of the matter including the desirability of permitting the party to start a fresh round of litigation on the same cause of action.