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2025 Supreme(J&K) 6
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR
M. A. Chowdhary, J.
Mohammad Ishaq Dar - Appellant
Versus
Usman Syed Shah - Respondent
CM(M) No.359 OF 2024 CM No. 5803 OF 2024
Decided On : 02-01-2025
Advocate Appeared:
For the Appellant :Mr. A.M.Dar, Sr.Advocate with Mr. Danish Majid Dar, Advocate.
For the Respondent:Mr. J.H.Reshi, Advocate
The court upheld the trial court's decision to recall a withdrawal order, emphasizing the importance of statutory remedies and recognizing a recurring cause of action due to unauthorized occupation.
Headnote:
(A) Constitution of India - Article 227 - Code of Civil Procedure, 1908 - Order 23 Rule 3A and Section 151 - Recall of withdrawal order - The trial court allowed the recall application of plaintiffs to restore the suit after it was withdrawn unconditionally, citing misrepresentation by defendants regarding an out-of-court settlement. The court emphasized that statutory remedies should not be curtailed and that a recurring cause of action exists due to unauthorized occupation. (Paras 1, 19, 22)
(B) Limitation Act, 1963 - The court found that the application for recall was within the permissible time frame under Article 137, as it was filed within three years. (Paras 9, 10)
Facts of the case:
The plaintiffs, joint owners of a property, had initially allowed the defendants to occupy it under a license agreement. After a settlement, the plaintiffs withdrew their suit against the defendants, but later sought to restore it, claiming the defendants failed to comply with the settlement terms. (Paras 2.1, 3.1, 14)
Findings of Court:
The trial court's decision to allow the recall application was upheld, affirming that the plaintiffs had a continuing cause of action due to the defendants' unauthorized occupation. (Paras 23, 24)
Issues: The main issues included whether the trial court erred in allowing the recall of the withdrawal order and the applicability of limitation provisions. (Paras 4, 8)
Ratio Decidendi: The court ruled that the trial court acted within its jurisdiction to recall the withdrawal order, emphasizing that statutory rights should not be undermined and that the plaintiffs had a recurring cause of action. (Paras 20, 21)
Result: Petition dismissed with costs of Rs.10,000/- against the petitioners.
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:
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 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 returned 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 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 respo
