MOHAMMAD ISHAQ DAR Vs. USMAN SYED SHAH

JUDGEMENT

(1.) Impugned is the order dtd. 8/6/2024 passed by the court of learned 1st Additional District Judge, Srinagar (Trial court) in the present petition filed under Article 227 of the Constitution of India, whereby the application filed by plaintiffs/respondents 1 and 2 herein, moved in terms of Order 23 Rule 3A read with Sec. 151 of CPC, seeking to recall the order dtd. 9/8/2023, was allowed and the suit filed by respondents 1 and 2 herein withdrawn unconditionally to the extent of petitioners herein, was restored.

(2.) The facts of the present case giving rise to filing of the instant petition are: 2.1. that, the respondents 1 and 2 herein are the joint owners in possession of a four storeyed building with a floor area of 6500 sft. and the land underneath and appurtenant thereto measuring 15 marlas 170 sft. comprising of khasra No.104, khata No.281 and khewat No.13, situated at Tashwan, Karan Nagar, Srinagar. In the year 2019 the respondent No.3 herein approached the respondents 1 and 2 to take the said premises as licensee to which they agreed to give on the terms and conditions contained in the duly executed and registered license deed dtd. 26/4/2019 and that the license fee was fixed at the rate of Rs.2.00 lacs per month and was to remain in force for a period of five years unless terminated earlier, by the either party with a prior written notice of sixty days; 2.2. that, the respondent No.3 out of his own free will and volition decided to surrender the vacant peaceful possession of the aforesaid premises back to the petitioners on 15/12/2020 and also undertook to clear all the outstanding balance payment of license fee, amounting to Rs.6.70 lacs; 2.3. that, in the meanwhile, respondent No.3 persuaded the petitioners herein to execute a fresh licensee deed with the respondents 2, 3 and 4 herein to be effective from 1/1/2021 for a period of five years on a reduced monthly license fee of Rs.1.80 lacs and that a license deed duly signed by the respondents 1 and 2 herein to this effect was taken by them for the signatures of the respondents 2, 3 and 4 herein but never retuned back to the respondents 1 and 2 herein, as promised, the respondent No. 4, however, backed out from it, as such, the respondents 1 and 2 again requested to execute a fresh license deed, but this time in favour of the petitioners herein, who happen to be the real brothers; that the respondents 1 and 2, accordingly got drafted and executed another license deed of the said premises in favour of the petitioners but they avoided to sign the same on one or the other pretext and have left the same with respondents 1 and 2 and the petitioners have failed to pay the license fee; 2.4. that, the petitioners and respondents No.3 herein are related to each other; that whatever may be the nature and state of the inter se personal or business relations between the petitioners and respondents No.3 herein, is of no concern, whatsoever, to the respondents 1 and 2 herein because the respondent No.3 has no competence or authority to create a third party interest of any kind in respect of the aforesaid suit property of the respondents 1 and 2 herein given to the respondent No.3 herein purely on a license basis for a period of five years out of a lawful business.

(3.) In view of the dispute a suit came to be filed by respondents 1 and 2 before the court of learned Principal District Judge, Srinagar, for declaration, for mandatory injunction for handing over the possession, recovery of arrears of license fee and damages; 3.1. that, the respondents 1 and 2 filed an application before the learned trial court for withdrawal of the suit against the petitioners herein and the learned court allowed the said application vide order dtd. 9/8/2023 and the suit was withdrawn unconditionally against the petitioners herein, however, despite the settlement dtd. 8/8/2023, respondents 1 and 2 failed to comply with the terms of the said agreement; 3.2. that, thereafter the respondents 1 and 2 filed an application under Order 23 Rule 3A read with Sec. 151 CPC seeking recall of the earlier order dtd. 9/8/2023.