JUDGMENT Lodha R.M., J.
1. This appeal arises from the order dated July, 26, 2005, passed by the learned Chamber Judge in Chamber Summons No. 452 of 2005 whereby the appellants who are original plaintiffs have been directed to implead (i) Harikishan R. Bhattad (ii) Harish R. Bhattad and (iii) Messrs Hari Construction as party defendants in the suit.
2. The appeal was admitted on 20th September, 2005 by the following order:
Coram : Dr. S. Radhakrishnan & S.C. Dharmadhikari, JJ.
Dated : 20th September, 2005.
P.C.: - Heard learned Counsel for appellants, respondents and applicants. Appeal is admitted, subject to issue of maintainability of appeal. Learned Counsel for respondents waive service. Filing of paper book and printing dispensed with. Hearing expedited. Parties are at liberty to file additional compilation.
3. The newly added parties challenged the order dated 20th September, 2005 before the Supreme Court. By the order dated 16-12-2005, the Supreme Court disposed of the petition for special leave to appeal by the following order:
After hearing the learned Counsel for the parties, we are of the opinion that the Division Bench of the High Court should determine the question of maintainability of the Letters Patent Appeal at the earliest and if possible dispose of the entire appeal by the next date fixed. We would request the High Court to take up the hearing of the matter within three weeks from the date of receipt of a copy of this order. In the meantime, status quo as regards possession so far as the petitioners before us are concerned, shall be maintained.
The Special leave petitions are disposed of accordingly.
4. We heard the learned Senior Counsel and the learned Counsel for the parties on the question of maintainability of the Letters Patent Appeal. After detailed hearing when the arguments in the appeal were almost over, Mr. M.P.S. Rao, the learned Counsel for the appellants submitted that the appellants are not desirous of pressing the appeal. He submitted that the appellants may be permitted to withdraw the suit as well.
5. Mr. Subramaniam, the learned Counsel for the newly added parties submitted that the appellants have obtained certain consent decrees against many defendants by perpetrating fraud and that the Notice of Motion No. 3008 of 2005 has been taken out by the newly added defendants for setting aside the said consent decrees. He also submitted that the prayer for withdrawal of the suit is not bona fide.
6. Mr. M.P.S. Rao, the learned Counsel for the appellants in response to the objection of Mr. T.N. Subrmaniam, submitted that the plaintiffs are not seeking any liberty to institute the fresh suit against the newly added defendants and, therefore, the opposition to the withdrawal of suit has no substance. He also submitted that as regards the Notice of Motion No. 3008 of 2005 taken out by the newly added defendants for setting aside the consent decrees, the same shall be heard and disposed of by the learned Single Judge on its own merits.
7. The plaintiffs filed the suit for the specific performance of the contract and other incidental reliefs against 57 defendants. The first defendant Goswami Shrimad Gokulnathji Maharaj being Hindu undivided family was impleaded through its Karta and Manager Hariraji Krishnajivanji Maharaj. The defendant Nos. 2 to 57 were impleaded being members/ co-partners of the first defendant.
8. It appears from the proceedings that the plaintiffs and the defendant Nos. 2 to 29, 31 to 34, 45, 49 to 53 and 56 entered into mutual settlement and the consent terms were tendered on 29-1-2005. By the order dated 21st February, 2005, the learned trial Judge passed the decree in terms of consent terms as between the plaintiff and these defendants. The order dated 21st February, 2005 reads thus -
Coram : S.U. Kamdar, J.
Dated : 21st February, 2005.
P.C.: - The plaintiffs and the defendant Nos. 2 to 29, 31 to 34, 45, 49 to 53 and 56 have tendered the Consent Terms dated 29-1-2005. The same is taken on record and marked 'X' for identification. There shall be a decree in terms of Consent Terms as between the plaintiff and these defendants. The suit is against the defendant Nos. 1, 30, 35 to 44, 46 to 48, 50 to 52, 54 and 57 to proceed.
9. It would be, thus, seen that the suit thereafter continued only against defendant Nos. 1, 30, 35 to 44, 46 to 48, 50 to 52, 54, 55 and 57.
10. The plaintiffs also seem to have settled the dispute amicably with defendant Nos. 46 and 47. On 22nd March, 2005, the learned trial Judge passed the decree in terms of the consent terms against defendant Nos. 46 and 47 and the suit against the other defendants was ordered to continue. The order dated 22nd March, 2005 reads thus -
Coram : S.U. Kamdar, J.
Dated : 22nd March, 2005 P.C.: - Both the parties have filed consent terms between the plaintiffs and the defendant Nos. 46 and 47. The same is taken on record have tendered the Consent Terms dated 29-1-2005. The same is taken on record and marked 'X' for identification. The suit is disposed of in terms of the consent terms against defendant Nos. 46 and 47. The suit against all other defendants to continue.
10. The plaintiffs thereafter also settled the dispute with defendant Nos. 54, 55 and 57 and consent terms were tendered on 13-6-2005. By the order dated June 13, 2005, the learned trial Judge disposed of the suit between the plaintiff and defendant Nos. 54, 55 and 57 in terms of the consent terms and ordered continuation of suit against the remaining defendants. The order dated June 13, 2005 reads thus -
Coram : A.M. Khanwilkar, J. Dated: June 13, 2005 P.C.: - Consent terms signed between plaintiff and defendant Nos. 54, 55 and 57 dated 13-6-2005 tendered taken on record. Parties have agreed for disposal of the suit in terms of consent terms inter se. This order will dispose of the suit between plaintiff and defendant Nos. 54, 55 and 57 in terms of the consent terms duly executed by the said parties and their Advocates. Defendant Nos. 55 and 57 are personally present in the Court and have accepted the terms provided for in the consent terms. Defendant No. 54 is not in a position to attend the Court, as he is bed ridden. In the circumstances, presence of defendant No. 54 is dispensed with. The consent terms are taken on record on behalf of the said defendant. Suit disposed of between plaintiff and defendant Nos. 54, 55 and 57 only in terms of the consent terms. In other words suit between plaintiff and defendant Nos. 1, 30, 36, 37, 38, 39, 40, 41, 42, 43, 44 and 48 shall continue in accordance with Law.
11. Thus, the suit remained pending against defendant Nos. 1, 30, 36, 37, 38, 39, 40, 41, 42, 43, 44 and 48 only.
12. In the meanwhile, it appears that on 1st April, 2005, the applicants 1, 2 and 3 took out the chamber summons for their impleadment. The said chamber summons as indicated above, came to be dispose of by the impugned order directing the plaintiffs to implead these applicants as defendants.
13. Now since the appellants plaintiffs are withdrawing the appeal, it is not necessary to go into the question of maintainability of the appeal and merits of the order directing the impleadment of three applicants as defendants. The order of impleadment, accordingly, stands and the plaintiffs are directed to carry out the amendment in the plaint immediately.
14. The learned Counsel for the appellants plaintiffs also prayed for withdrawal of the suit. We initially thought of directing the plaintiffs to apply to the learned trial Judge for withdrawal of the suit but on second thought formed the opinion that the plaintiffs may be permitted to withdraw the suit. The newly added defendants, obviously, do not have justification in opposing the withdrawal when no liberty is sought for institution of the fresh suit against them and the notice of motion taken out by them for setting aside the consent decree shall be decided by the learned motion Judge on its own merits.
16. We, accordingly, pass the following order:
(i) The appeal is allowed to be withdrawn.
(ii) Upon withdrawal of the appeal, we clarify that the impugned order dated July 26, 2005 stands and that the plaintiffs shall carry out the necessary amendment in the cause title as per the order dated July 26, 2005 immediately.
(iii) The plaintiffs are permitted to withdraw the suit against defendant Nos. 1, 30, 36, 37, 38, 39, 40, 41, 42, 43, 44 and 48 as well as the newly added defendants.
(iv) We record that as regards other defendants, the suit already stands disposed of by the orders dated 21st February, 2005, 22nd March, 2005 and June 13, 2005.
(v) It is clarified that withdrawal of the suit shall not affect in any manner the Notice of Motion No. 3008 of 2005 taken out by the newly added defendants and the said notice of motion shall be decided on its own merits by the learned motion Judge.
All contentions of the parties in support and in opposition to the notice of motion are kept open to be agitated before the learned Motion Judge.
For a period of four weeks status quo as regards the possession that was ordered to be maintained by the Supreme Court in the order dated 16-12-2005 shall continue to operate.