The right to withdraw a suit is absolute unless restricted by law, and a significant delay in seeking recall of such withdrawal must be justified with a bona fide explanation.

JUDGMENT :

1. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the parties, heard finally at the stage of admission.

2. The challenge in this petition is to an order dated 22^nd February, 2024 passed by the learned Civil Judge, Kalyan whereby an application preferred by the respondent/ original defendant to condone the delay of 9 years 4 months and 18 days in preferring an application to recall the order dated 20^th April, 2013 permitting the petitioner/ plaintiff to withdraw the suit being R.C.S. No. 782 of2012, came to be allowed.

3. The background facts leading to this petition can be summarized as under:-

(a) The petitioner is a company incorporated under the Companies Act, 1956. It was engaged in the business of real estate development. On 31^st May, 2008 a Development Agreement was executed by the respondents and Janak Pandurang Mhatre and Motiram Kachru Mhatre is favour of the petitioners, thereby granting development rights in respect of the suit properties. The plaintiff claimed to have parted with consideration of Rs. 47 lakhs under the said agreement, and been put in possession of the suit properties.

(b) Asserting that the defendants were causing obstruction to the possession and enjoyment of the plaintiff over the suit properties and also committed encroachment thereon, the petitioner instituted a suit for declaration that the said agreement was subsisting and binding on the defendants and the defendants had no right to disturb the possession of the plaintiffs over the suit properties, the notice dated 18^th May, 2012 addressed by the defendants professing to cancel the said agreement was unlawful and the consequential reliefs of injunction.

(c) In the said suit, initially an order of status-quo was passed on 31^st October, 2012. By an order dated 17^th April, 2013 the said order of status-quo was modified to include utilization of FSI potential over the land belonging to the defendants.

(d) On 20th April, 2013 the plaintiff filed a pursis to withdraw the suit unconditinoally. By an order dated 20^th April, 2013 the learned Civil Judge granted permission and the suit was disposed as unconditionally withdrawn.

(e) The respondents/ defendants filed an application on 4th October, 2023 seeking condonation of delay in filing application to recall the aforesaid order dated 20^th April, 2013 passed in RCS No. 782 of 2012, on the premise that the said suit was withdrawn by the plaintiff fraudulently. Referring to the order dated 17^th April, 2013 whereby the earlier order of status quo was modified to include utilization of FSI potential over the land belonging to the defendants, the defendants contended that the plaintiff surreptitiously withdrew the suit as status-quo was running against the plaintiff. A fraud was played on the Court by seeking withdrawal of the suit on the ground that the matter was amicably resolved between the parties though there was no such settlement. Neither the advocate for the defendants nor the defendants were informed about the motion to withdraw the said suit. It was, therefore, necessary to set aside the said order and restore the suit so that the order of status-quo, as modified by the order dated 17th April 2013, continuous to operate.

(f) As regards the delay, the defendants contended that after the unconditional withdrawal of the said suit the plaintiff did not submit building proposal for over 10 years and took any action to erect construction. However, on 19^th January, 2023, the plaintiff submitted a proposal for building construction. Thus, the defendants were constrained to approach the Court for recall of the order permitting withdrawal of the suit. Hence, the delay, according to the defendants, was not intentional.

(g) By the impugned order, the learned Civil Judge was persuaded to allow the application for condonation of delay observing that the cause ascribed for the delay was sufficient as the plaintiff did not submit the building proposal and attempt to carry out