IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE CIVIL APPLICATION NO. 2771 OF 2008 CIVIL APPLICATION NO. 2771 OF 2008 CIVIL APPLICATION NO. 2771 OF 2008 WITH WITH WITH CIVIL APPLICATION NO. 2892 OF 2006 CIVIL APPLICATION NO. 2892 OF 2006 CIVIL APPLICATION NO. 2892 OF 2006 IN IN IN WRIT PETITION NO. 4576 OF 1998 WRIT PETITION NO. 4576 OF 1998 WRIT PETITION NO. 4576 OF 1998 Deorao Krishanrao Jadhav through his legal heirs: Kamaladevi Deorao Jadhav & ors. ... Petitioners. V/s. Namdeo Rajaram Kadam & ors. ... Respondents. A.M.Joshi for the applicants/original respondents. K.K.Singhvi, senior counsel with C.J.Sawant, senior counsel i/b. V.M.Thorat for the respondents/ original petitioners. R.V.Pai for the intervenors. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. DATED: 2nd February 2009. DATED: 2nd February 2009. DATED: 2nd February 2009. P.C.: P.C.: P.C.: ---- ---- ---- . This petition, filed under Article 227 of the Constitution of India, is directed against the order dated 22nd July, 1998 passed by the Maharashtra Revenue Tribunal (MRT) in Revision Application No.MRT.PXII.3/87 (B-325/87) whereunder the order passed by the Sub-Divisional Officer dated 14th December, 1997 came to be set aside with direction to restore possession to the landlords immediately. The revision applicant- landlord was allowed to continue to remain in possession, if found to be in possession. The Facts : The Facts : The Facts : --------- --------- --------- 2. This petition is pending in this Court since 1998. The petitioners are tenants; whereas respondents are landlords. The respondents- landlords have moved an application seeking permission to withdraw revision application, which was filed and decided by the MRT vide its order dated 22nd July, 1998, contending that the respondents do not want to litigate. 3. This application moved by the respondents- landlords is opposed by the proposed intervenors claiming to be the transferees of the subject property from the respondent- landlords during pendency of the litigation. 4. The application for intervention was moved by the intervenors sometime in the month of October, 2006. The same was to be considered at the time of final hearing of this petition. The respondents- landlords are seeking to withdraw their revision application, which was filed by them before MRT, with the consent of the tenants, who are the petitioners herein. This attempt to withdraw revision application is opposed by the proposed intervenors. - 3 - The Issue : The Issue : The Issue : --------- --------- --------- 5. The question in the facts and circumstances of the case is: whether the persons, who are seeking to intervene, who are not even parties to the petition, can object to the prayer made by the parties to the petition, seeking withdrawal of revision which was filed before MRT, contending that the parties to the petition should be compelled to litigate for their befifits? Submissions : Submissions : Submissions : ----------- ----------- ----------- 6. Mr.Pai, learned counsel appearing for the proposed intervenors submits that the intervenors have purchased the disputed property from the respondents under a registered sale-deed as back as in the year 1962. They claim to be in possession of the subject property. According to him, the impugned order can be used by the proposed intervenors for their benefit. In support of his submission, he placed reliance on three judgments of the Apex Court in the case of Silla Silla Silla Chandra v. Ramchandra Sahu Chandra v. Ramchandra Sahu Chandra v. Ramchandra Sahu, AIR 1964 SC 1789; R.Rathinavel Chettiar v. V. Sivaraman R.Rathinavel Chettiar v. V. Sivaraman R.Rathinavel Chettiar v. V. Sivaraman, 1999 (1) SCJ 646; and K.S.Bhoopathy & ors. v. Kokila & ors. K.S.Bhoopathy & ors. v. Kokila & ors. K.S.Bhoopathy & ors. v. Kokila & ors., JT 2000 (6) SC 272. All the three judgments take a - 4 - similar view so far as the interpretation of order 23 rule 1 of Code of Civil Procedure is concerned. 7. Mr.Singhvi, learned counsel appearing for the petitioners as well as Mr.Joshi, learned counsel appearing for the respondents jointly urged that if the parties to the litigation do not want to litigate, they cannot be forced to litigate. Both of them further urged that, so far as the intervention application is concerned, the same has not yet been granted by this Court. Therefore, the intervenors at the best can be the proposed intervenors. Both of them urged that, assuming for the sake of argument the intervention as prayed is granted, even then the intervenors have no right to claim substantive relief except to address the Court. Both of them, therefore, submit that the objection raised by the proposed intervenors should be overruled and the respondents- landlords should be allowed to withdraw revision application as prayed. 8. Mr.Singhvi and Mr.Joshi further urged that the proposed intervenors have already filed suit in the civil Court to establish their rights. In the said suit they are claiming to be in possession of the - 5 - property. Both of them, therefore, submits that no prejudice would be suffered by the proposed intervenors, if the prayer made by the respondents is granted by this Court. It will neither affect their right to proceed with the suit nor their possession, if they are found to be in possession. Consideration : Consideration : Consideration : ------------- ------------- ------------- 9. Having heard rival contentions, one thing is clear that the intervention application has not yet been granted. Therefore, the objectors can at best be said to be proposed intervenors. Secondly, in writ jurisdiction, the validity of the purchase of property by them in the year 1962 cannot be gone into because that is not the issue involved in the petition. They will have to establish their right independently in the pending suit. 10. The intervenors are claiming to be in possession of the subject property in the suit filed by them. If they are in possession of the property they will continue to be in possession of the property. This order is not going to prejudice their possession, if they are in possession. By permitting withdrawal of the revision application no order - 6 - adverse to them is being passed. 11. The Apex Court, in the case of K.S.Bhoopathy & K.S.Bhoopathy & K.S.Bhoopathy & ors. v. Kokila & ors. ors. v. Kokila & ors. ors. v. Kokila & ors. (supra), while interpreting order 23 rule 1(3) of C.P.C. has held that the plaintiff can abandon a suit or abandon part of his claim as a matter of right without the permission of the Court and that the plaintiff will be precluded from suing again on the same cause of action. 12. The respondents herein are not seeking any liberty to initiate any other proceeding. The respondents are seeking to withdraw proceeding unconditionally without reserving any right and without seeking any leave to institute any other proceeding. 13. In the above view of the matter, in my considered view, the applicants/ respondents cannot be prevented from withdrawing their revision application, especially, when the petitioners have no objection. The proposed intervenors have no right to oppose. 14. In the above view of the matter, the present - 7 - application being Civil Application No.2771/2008 seeking to withdraw revision application is allowed. With the result, the impugned order itself would not survive. The petition is, therefore, dismissed for want of cause of action with no order as to costs. 15. With the dismissal of writ petition, the Civil Application No.2892/2006 taken out by the applicants- intervenors seeking intervention does not survive. The same is dismissed as infructuous. 16. Needless to mention that this order permitting withdrawal shall not affect the interest of the proposed intervenors, if any, since their rights are not adjudicated by this Court in the present petition. They will have their independent rights. All contentions available to the proposed intervenors are specifically kept open. 17. At this stage, Mr.Pai prayed for stay of this order. Intervenors not being party to the petition, prayer is strongly opposed. Prayer made is rejected. (V.C.DAGA, J.) (V.C.DAGA, J.) (V.C.DAGA, J.)