1 CRA-484-09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Mhi CIVIL REVISION APPLN. NO. 484 OF 2009 Shri Babanrao Shankarrao Jamdar & Anr. ... Applicants (Orig. defendants) Vs. Shamim Sadik Momin & Anr. ... Respondents (Orig. Plaintiffs) Mr. S.M.Oak, i/b. Sagar Joshi,Advocate, for the applicants Mr. Rahul S. Kate,Advocate for the respondent Nos. 1 & 2. CORAM: J.H.BHATIA,J. DATE : 15th September, 2010. P.C. 1. Heard the learned Counsel for the parties. 2. The respondents are the original plaintiffs. They had filed Regular Civil Suit No.144 of 2002 in the Court of Civil Judge, Junior Division at Baramati for perpetual injunction. According to the plaintiffs, they had purchased 1/3rd share in Survey No.148 from southern side from its original owners and the defendant/revision applicants were trying to disturb their possession. After trial, the suit was dismissed mainly o the ground that the sale deed did not disclose the exact description and boundaries of the property which he had purchased. Against the dismissal, the plaintiffs filed Regular Civil Appeal No.47 of 2007. During the pendency of the appeal, the plaintiff sought to withdraw the appeal as well as the 2 CRA-484-09.sxw suit with liberty to file fresh suit in respect of the same subject matter on the ground that after dismissal of the suit, a rectification deed was executed by the original vendors on 7.8.2007 and the correct description and boundaries of the property purchased by the plaintiff was shown. In view of these circumstances, inspite of the objection taken by the defendants, the learned District Judge-I, Baramati, allowed the plaintiff to withdraw the appeal and the suit with liberty to file fresh suit in respect of the same subject matter. That order is challenged by the original defendants 3. The learned Counsel for the revision applicants contended that when the suit was dismissed on merits and the rights of the parties are crystalised during the pendency of the appeal, the plaintiffs should not have been allowed to withdraw the suit with liberty to file fresh sit. In support of his contention, he relied upon R. Rathinavel Chettiar and Anr. vs. V.Sivaraman and Anr. (1999) 4 SCC 89, wherein Their Lordships observed thus in paras 11 and 12: "11. Once the matter in controversy has received judicial determination, the suit results in a decree either in favour of the plaintiff or in favour of the defendant." "12. What is essential is that the matter must have 3 CRA-484-09.sxw been finally decided so that it becomes conclusive as between the parties to the suit in respect of the subject- matter of the suit with reference to which relief is sought. It is at this stage that the rights of the parties are crystalised and unless the decree is reversed, recalled, modified or set aside, the parties cannot be divested of rights under the decree. Now, the decree can be recalled, reversed or set aside either by the court which had passed it as in review, or by the appellate or revisional court. Since withdrawal of suit at the appellate stage, if allowed, would have the effect of destroying or nullifying the decree affecting thereby rights of the parties which came to be vested under the decree, it cannot be allowed as a matter of course but has to be allowed rarely only when a strong case is made out. It is for this reason that the proceedings either in appeal or in revision have to be allowed to have a full trial on merits." 4. From the above observations, it appears that the suit cannot be allowed to be withdrawn as a matter of course, but may be allowed though rarely only when a strong case is made out for the same. In the present case, no interest of any third party has been involved in the matter. It cannot be said that rights of the parties are crystalized. It is also an admitted fact that the vendors of the plaintiffs are the relatives of the defendants. Admittedly, partition had 4 CRA-484-09.sxw taken place amongst them and 1/3rd share was given to the vendors. That 1/3rd share was purchased by the plaintiffs. He lost the suit before the trial Court mainly because the description of the property purchased by him was not given in the said sale deed. The rectification deed was got executed after dismissal of the suit and, therefore, he sought to withdraw the suit with liberty to file fresh. 5. Taking into consideration the facts and circumstances, I find that it was in the interest of justice to allow the plaintiffs to withdraw the appeal as well as the suit with liberty to file fresh suit. Therefore, I do not find any illegality or irregularity in the impugned order. 6. For the aforesaid reasons, the Revision Application stands dismissed. (J.H.BHATIA,J.)