Jet Ply Wood Private Ltd. & Anr vs Madhukar Nowlakha & Ors

Leave granted in both the matters.

One Madhukar Nowlakha, the respondent No. I in these appeals, entered into an agreement for sale in respect of premises No. 4A, Lansdowne Place, P.S. Lake, Kolkata-700029, together with the building and structures thereon, with one Shri Biswarup Banerjee and five others on 20th September, 1988. Inasmuch as, the said agreement was allegedly not acted upon for a long time, the same was purportedly cancelled by the owners on 15th June, 2002.

On 24th September, 2003, Shri Madhukar Nowlakha filed Title Suit No. 32 of 2003 in the Court of Civil Judge, (Senior Division) 9th Court at Alipore, for specific performance of the agreement purported to have been cancelled and for temporary injunction to restrain the petitioners from alienating the suit premises. Thereafter, on 30th October, 2003, the said Respondent No. I applied to the Court for leave to withdraw the suit on the ground that since there were talks of settlement between the parties, he no longer wished to proceed with the suit. No leave was prayed for to file a fresh suit on the same cause of action.

On 11th July, 2004, the learned Judge allowed the respondent No. I to withdraw the suit, but without liberty to file a fresh suit on the same cause of action. On 23rd August, 2004, after termination of the agreement and after withdrawal of the suit filed by the Respondent No. I, Shri Biswarup Banerjee and the other co-owners sold the premises to M/S. Jet Ply Wood Company Limited, the petitioner in SLP (C) No. 10024/2005.

Within a month thereafter, on 24th September, 2004, Shri Madhukar Nowlakha applied to the learned Civil Judge (Senior Division) 9th Court at Alipore, for recalling of the order by which the suit had been permitted to be withdrawn on the ground that he had been misled into making such application on account of the misrepresentation of Shri Biswarup Banerjee and the other co-owners that they would sell the property to him provided he withdrew the suit. The learned Civil Judge (Senior Division) 9th Court at Alipore, rejected the said application filed by Shri Madhukar Nowlakha. After rejection of his said application for recalling the order allowing withdrawal of the suit, Shri Madhukar Nowlakha filed a second suit, being Title Suit No. 87 of 2004, which is said to be pending. His prayer for interim injunction in the said suit was rejected. Thereafter, on 23rd December, 2004, Shri Madhukar Nowlakha filed an application before the High Court at Calcutta under Article 227 of the Constitution, being C.O. No.3982 of 2004, challenging the Trial Court's order dated 24th September, 2004, refusing to recall its earlier order of 11th February, 2004. While admitting the said application, the High Court directed service of notice on the opposite parties and directed status quo to be maintained for a period of eight weeks.

We are of the view that the law having been correctly stated in the aforesaid case, the learned Single Judge of the Calcutta High Court in making an order on the same lines did not commit any error of jurisdiction which calls for any interference in these appeals. The appeals are, therefore, dismissed, but without any order as to costs.