Mohammad Ishaq Dar & Anr vs Usman Syed Shah & Ors on 2 January, 2025

Jammu & Kashmir High Court – Srinagar Bench

Mohammad Ishaq Dar & Anr vs Usman Syed Shah & Ors on 2 January, 2025

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         HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT SRINAGAR


CM(M) No.359/2024
CM No. 5803/2024
\




                                             Reserved on: 24.12.2024
                                             Pronounced on: 02.01.2025
    Mohammad Ishaq Dar & Anr.

                                             ...Appellant/Petitioner(s)

              Through: Mr. A.M.Dar, Sr.Advocate with
                       Mr. Danish Majid Dar, Advocate.

                                 Vs.
Usman Syed Shah & Ors.

                                                   ...Respondent(s)

              Through: Mr. J.H.Reshi, Advocate.

CORAM:
             HON'BLE MR. JUSTICE M. A. CHOWDHARY, JUDGE
                              JUDGMENT

1. Impugned is the order dated 08.06.2024 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

Section 151 of CPC, seeking to recall the order dated

09.08.2023, 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2 herein withdrawn unconditionally to the extent of petitioners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:

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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 dated

26.04.2019 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 01.01.2021 for a period of five years

on a reduced monthly license fee of Rs.1.80 lacs and
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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.

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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 dated

09.08.2023 and the suit was withdrawn

unconditionally against the petitioners herein,

however, despite the settlement dated 08.08.2023,

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

Section 151 CPC seeking recall of the earlier order

dated 09.08.2023.

4. It is alleged that despite the clear legal position and objections

raised by the petitioners/defendants, the learned trial court

erroneously allowed the recall application by passing the

impugned order dated 08.06.2024 and that the learned trial

court failed to appreciate that no application for condonation of

delay has been filed rendering it barred by limitation. Hence the

instant petition.

5. Respondents 1 and 2/plaintiffs filed their objections, wherein it is

stated that the petition filed by the petitioners under Article 227
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of the Constitution of India is untenable both on facts and in law;

that the powers conferred on this Court under Article 227 of the

Constitution of India are discretionary in nature, therefore,

cannot be allowed to be abused to practice a fraud on the rights,

title and the interests of a party; that under the garb of an

outside court settlement, misrepresentation and deception by

the petitioners/defendants, the respondents herein were made

to withdraw the suit from the trial court but the petitioners

eventually refused to vacate and handover the peaceful physical

possession of the property in question belonging to

plaintiffs/respondents 1 and 2.

6. It is asserted that the premises being under the unauthorized

and illegal occupation of the petitioners, the respondents 1 and

2 were constrained to get the proceedings in the suit revived as

against the petitioners in accordance with law; that it was not a

case of unconditional withdrawal of a suit but withdrawal of a

case in terms of an outside court settlement arrived between the

parties; that the application filed before the trial court was not

filed under Order 9 Rule 9 of CPC for restoration of the suit

dismissed in default but it was an application filed under Section

151 read with Order 23 Rule 3A of CPC for recalling of the order

of withdrawal of the suit; that the application was within time as it

is covered by the Article 137 of the Limitation Act, which

provides that the application for which no limitation is provided,

can be filed within a period of three years; that the respondents

1 and 2 have a recurring and continuance cause of action as

against the petitioners until they get back peaceful physical
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possession of their property in question which is under the

unauthorized and illegal occupation of the petitioners.

7. Heard learned counsel for the parties, perused the material

available on record and considered the same.

8. The first and the foremost argument of learned counsel for the

petitioners would be that under the mandate of Order 23 Rule

1(4) of CPC, once a suit is withdrawn unconditionally without

liberty to file afresh, the plaintiff is barred from re-litigating on the

same cause of action and by allowing the application for recall,

the learned trial court has misapplied this provision. Learned

counsel for the petitioners argued that the application filed by

the respondents 1 and 2 relied on Order 23 Rule 3A CPC, which

is inapplicable to the present case and that the suit was

withdrawn without incorporating any compromise into the court

records, meaning thereby that Order 23 Rule 3A could not be

invoked. Learned counsel further submitted that even assuming

for the sake of arguments that the application for recalling the

order dated 09.08.2023 was maintainable but the respondents 1

and 2 failed to demonstrate any exceptional circumstances that

would warrant recall of the said order.

9. Learned counsel for the petitioners contended that under the

provisions of The Limitation Act, 1963, to restore a suit or appeal

or for that matter an application for review or revision, dismissed

for default of appearance, the same should be moved within a

period of thirty days from the date of dismissal, but in the instant

case the suit filed by the respondents 1 and 2 herein was

dismissed as withdrawn to the extent of petitioners herein
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beyond thirty day’s period in terms of the order dated

09.08.2023, which order was recalled in terms of the impugned

order dated 08.06.2024 i.e., after a gap of ten months, which

under the provisions of Limitation Act, 1963, is impermissible.

10. Learned counsel for the respondents, ex-adverso, argued

that Article 137 of The Limitation Act, 1963, provides that the

application for which no limitation is provided, can be filed within

a period of three years. He further stated that the application for

recalling the order dated 09.08.2023 was filed on 14.10.2023,

means within two months. His further argument is that the order

dated 09.08.2023 came to be passed on a

compromise/settlement between the petitioners and the

respondents 1 and 2.

11. The contention of learned counsel for the respondents is

that in terms of the settlement entered between the petitioners

and respondents 1 and 2, the petitioners were required to

vacate the four storeyed building of the respondents and the

respondents had agreed to pay an amount of Rs.39 lacs to the

petitioners within a period of 15 days of the execution of the said

settlement, however, when the respondents approached the

petitioners for handing over the possession in terms of the

settlement and payment of the aforesaid amount, the petitioners

failed to surrender the possession of the said building.

Therefore, the order dated 09.08.2023 was conditional and not

unconditional, as argued by the learned counsel for the

petitioners.

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12. Respondents 1 and 2 have filed the Civil suit for

declaration, declaring the defendants 1 to 3 including petitioners

herein or anyone, whosoever. holding the suit property on their

behalf or working for them as rank trespassers and unauthorized

occupants thereof; declaring the plaintiffs as de facto and de

jure owners in possession of the suit property; declaring the

documents annexed to the suit or any other similar documents

as may have been fabricated or forged by the contesting

defendants 1 to 3 vis-à-vis the suit property to the prejudice of

the rights of the plaintiffs, as null and void, ineffective and

inoperative, as against the plaintiffs or their successors in

interest with mandatory injunction directing defendants 1 to 3 to

hand over the immediate peaceful and physical possession of

the suit property to the plaintiffs on as it basis or as it was

delivered to the contesting defendant No.1 at the beginning with

a decree for recovery of an outstanding amount of Rs.6.70 lacs

due and payable to the plaintiffs, besides a decree for the

payment of damages/mesne profits.

13. During the pendency of the suit, respondents 1 and

2/plaintiffs and the petitioners/contesting defendants are stated

to have settled the matter out of the court by entering into

outside court settlement on 08.08.2023 undertaking that the

defendants agreed to surrender back the physical and peaceful

possession of the suit property i.e. four storeyed building and

the land underneath and appurtenant thereto comprising survey

No.104 at Tashwan, Karan Nagar, Srinagar and that the

respondents herein agreed in lieu thereto to pay the
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defendants/petitioners herein an amount of Rs.39.00 lacs on

account of the wooden paneling, metallic partitions, glass work

and other electrical, decorative etc., and other material as per

the list annexed to the settlement, and both the parties mutually

agreed to execute the agreement within a period of 15 days. It

was further undertaken that the suit between the parties will be

withdrawn unconditionally in terms of the outside court

settlement, from the trial court, besides seeking withdrawal of all

the criminal complaints.

14. On execution of the aforesaid settlement between the

parties, the contesting respondents, as plaintiffs, moved an

application on 09.08.2023 seeking withdrawal of the suit

captioned ‘Usman Syed & Anr. Vs. Mohd. Ishaq Dar & Ors’. to

the extent of defendants 2 -4 in terms of the outside court

settlement dated 08.08.2023 and the trial court vide order dated

09.08.2023, acting upon the application and recording the

statement of plaintiffs, the defendants 2 to 5 were removed from

the suit. Respondents, however, on 14.10.2023 moved an

application in terms of Order 23 Rule 3A read with Section 151

of CPC for recalling of the order dated 09.08.2023, on the

ground that though they had approached the defendants for

handing over the possession in terms of the settlement and also

had shown their willingness to make the payment of the agreed

amount to them, they on one or the other pretext failed to

surrender the possession of the aforesaid suit building in favour

of the applicants and it was prayed that the order dated
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09.08.2023 be recalled, so that the applicants may prosecute

their case against the defendants.

15. The defendants/ petitioners herein filed their objections to

the application, stating that the application was not maintainable

on the ground that no decree was passed by the court and that

the applicants had abandoned their claim against the

defendants 2 to 4 because they had not sought any liberty to file

fresh suit, therefore, applicants are precluded for instituting fresh

suit or application in respect of the claim or part of the claim.

16. The trial court, after considering the matter and hearing

the parties through their counsel, relied upon the judgment of

the Apex Court passed in a case titled ‘Jet Ply Wood Private

Ltd. & Anr. Vs. Madhukar Nowlakha & Ors.‘ (AIR 2006 SC

1260), wherein it had been held that when the suit was

withdrawn on an application without leave to file fresh suit, the

order permitting withdrawal of suit was permissible by resorting

to Section 151 CPC. There is no specific provision in the CPC

for recalling of an order permitting withdrawal of the suit.

17. The case, as projected by the respondents/plaintiffs before

the court below was that they had been made to withdraw the

suit against the petitioners herein on the basis of the out of the

court settlement reached between the parties, wherein the

petitioners had agreed to hand over the vacant physical and

peaceful possession of the suit property of the plaintiffs on

receipt of an amount of Rs.39.00 lacs, however, it was alleged

that the petitioners despite having committed to the agreement

in the outside court settlement, had cheated the contesting
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respondents by not observing the agreement and, as such, they

were made to suffer on account of their assurance about the

dismissal of their suit vis-à-vis petitioners herein on the basis of

the application moved for withdrawal of the suit against them.

18. It is the fact that the trial court had not passed a decree on

the basis of the outside court settlement, as such, the

respondents were left with no statutory remedy either to file an

appeal or assail the same by any other mode and were

rendered without any remedy. Respondents, as such, moved an

application for revival of their suit on failure of the petitioners

herein to observe the conditions of the outside court settlement,

which was made basis for withdrawal of the suit against them.

19. In a recent judgment of Apex Court in a case titled

“Navratan Lal Sharma Vs. Radha Mohan Sharma & Ors.”

reported as 2024 SCC OnLine SC 3720, in almost on similar

facts and circumstances of the case on hand, held that ‘after

careful consideration of the statutory framework and Order 23

Rules 3 and 3A, as informed by relevant judicial precedents, we

have allowed the appeal. We have directed that, in such

circumstances, restoration is the sole remedy, which the

aggrieved party may exercise as a statutory right’.

20. The contention made on behalf of the petitioners herein

that while dismissing the case having been withdrawn by the

contesting respondents against the petitioners herein, no liberty

was sought or granted to avail remedy, as such, no such plea

can be raised later, does not seem to be a correct position of

law. In-fact, when there is a statutory remedy available to the
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litigant, there is no question of a court granting liberty to avail

such remedy as it remains open to the party to work out his

remedies in accordance with law. Therefore, there was no

occasion for the trial court to deny liberty to file restoration and

the consequent grant of the recall application by the impugned

order, on this ground alone, survives. Further, as a matter of

policy, courts must not curtail statutorily provisioned remedial

mechanisms available to the parties.

21. In a case titled ‘Jet Ply Wood Private Ltd. & Anr. Vs.

Madhukar Nowlakha & Ors.‘ reported as 2006(3) SCC 699,

which had been relied upon by the trial court, had held that

withdrawal of the suit by plaintiffs on the basis of mistake or

misrepresentation/subterfuge by the defendants and later after

withdrawal of the said suit, the defendants resiling from their

stand and conveying property in question to another, held that

the High Court had rightly permitted recall of the withdrawal

order, as when through the said mistake plaintiffs had withdrawn

the suit, court would not be powerless to set aside the order in

exercise of its powers under Section 151 of CPC.

22. The plea with regard to the limitation having not been

considered by the trial court was also argued by the learned

senior counsel appearing for the petitioners, however, in view of

the fact that the premises of the respondents i.e. four storeyed

building being in possession of the petitioners unauthorizedly,

the respondents had a recurring cause of action to seek

possession of the property in question, therefore, in view of the
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continuous cause of action, the contention with regard to

limitation, is totally misconceived and is liable to be rejected.

23. In view of the facts and circumstances of the case on hand

and the law laid down by the Apex Court discussed

hereinabove, the impugned order is found to have been passed

by the trial court perfectly in consonance with law and does not

call for any interference by invoking supervisory jurisdiction of

this Court, which otherwise has to be sparingly used.

24. Viewed thus, the petition is found to be without any merit

and substance and is liable to be dismissed, as such, is

dismissed with costs, which is quantified as Rs.10,000/- to be

payable by the petitioners herein, as defendants before the court

below, which shall be condition precedent to defend their suit

before the trial court.

25. Copy of this order shall be forwarded to the trial court for

information.

(M. A. CHOWDHARY)
JUDGE
Srinagar
02.01.2025
Muzammil. Q

Whether the judgment/order is reportable: Yes / No