- 1 - 5-caw-109-2011 srj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.109 OF 2011 IN WRIT PETITION NO.3837 OF 2009 The Seva Vikas Co-operative Bank Ltd. .. Applicant/ Petitioner. V/s. Shri Kamal P. Malkani & Others .. Respondents. Mr. Nitin Deshpande, for the Applicant in Civil Application and for Respondent No.2 in Writ Petition. Mr. Amol Mhatre, for Respondent No.1 in Civil Application and for Respondent No.1 in Writ Petition. Mr. A. M. Kulkarni, for Respondent Nos.2 and 3 in Civil Application and for the Petitioner in Writ Petition. Mr. Kishor Tembe, for Respondent No.4 in Civil Application and for Respondent No.3 in Writ Petition. CORAM: G.S.GODBOLE,J. DATE : 24th NOVEMBER, 2011. P.C:- 1 Heard all the learned Advocates for the Parties. 2 Civil Application No.109 of 2011 is filed by The Seva Vikas Co-operative Bank Ltd, for vacating the ad-interim relief and in the alternative, directing Respondent Nos.2 and 3 in the Civil Application (Original Petitioner in the Writ Petition) to deposit a sum of - 2 - 5-caw-109-2011 Rs.30,59,514/- in this Court. 3 Respondent No.1 in both the proceedings is the Original Disputant in Dispute No.164 of 2008 filed in the Co-operative Court No.II at Pune for declaration and injunction. In this dispute, the Defendant Nos.1 and 2 therein; who are Petitioners in the Writ Petition and Respondent Nos.2 and 3 in the Civil Application, filed an application below Exhibit 32 for framing preliminary issues. That application was rejected by the learned Judge, Co-operative Court No.1, Pune on 1st April, 2009. 4 Aggrieved by this order, the Petitioners in the Writ Petition filed Revision Application No.48 of 2009 before the Maharashtra State Co- operative Appellate Court, Mumbai, Bench Pune, at Pune and filed an application for interim relief below Exhibit 5. That application is rejected by the learned Member, Maharashtra State Co-operative Appellate Court, Mumbai Bench, Pune, at Pune on 2nd April, 2009. 5 Aggrieved by this order, the present Writ Petition No.3837 of 2009 has been filed by the Original Defendant Nos.1 and 2. Writ Petition is already admitted and by ad-interim order, the further proceedings in the - 3 - 5-caw-109-2011 Dispute have been stayed. In this situation, The Seva Vikas Co-operative Bank Ltd., has filed Civil Application No.109 of 2011. However, the Original Disputant- Mr. Kamal P. Malkani has filed Affidavit in Writ Petition No.3837 of 2009, contending that he desires to unconditionally withdraw Dispute No.164 of 2008. It is well settled that if the Plaintiff wants unconditional withdrawal the suit, except in case of suits for partition or partnership dispute, the Court has no discretion left and has to permit unconditional withdrawal which has its own legal consequences. The Original Plaintiff for reasons which may not be relevant, does not wish to prosecute the suit any longer. However, on account of the ad- interim relief granted in terms of prayer clause (c), the Co-operative Court has expressed its inability to permit the withdrawal of the said Dispute. 6 In such a situation, if the Respondent No.1 (Original Disputant) is allowed to withdraw the Dispute, the Writ Petition and consequential Civil Application becomes infructuous. The Respondent No. 1 cannot be forced to prosecute his Dispute, if he does not wish to prosecute it any further. In view of this, the interim relief granted in Writ Petition No.3837 of 2009 is vacated in terms of the Affidavit of Respondent No.1 who is also personally present in the Court today and instructed his Advocate Shri Amol Mhatre that he desires to - 4 - 5-caw-109-2011 unconditionally withdraw the Dispute which statement is reiterated by Advocate Shri Amol Mhatre. Respondent No.1 is allowed to unconditionally withdraw the Dispute No.164 of 2008 filed in the Co- operative Court No.I at Pune. 7 On account of unconditional withdrawal of the Dispute No. 164 of 2008, Revision Application No.48 of 2009 filed by the Petitioners before the Maharashtra State Co-operative Appellate Court, Mumbai Bench, Pune at Pune does not survive and the same is also disposed off as it has become infructuous on account of the withdrawal of the Original Dispute No.164 of 2008. 8 In view of the withdrawal of the Original Dispute No.164 of 2008 and in view of the dismissal of the Revision Application No.48 of 2009, Writ Petition No.3837 of 2009 does not survive and the same is also disposed off as infructuous. Rule is discharged. 9 In view of the dismissal of the Writ Petition, Civil Application No.109 of 2011does not survive and the same is also disposed off. (G.S.GODBOLE,J.)