1. The present Civil Revision Application under Section 115 of the Code of Civil Procedure has been preferred by the applicants-original defendants to quash and set aside the impugned order dated 01/03/2012 passed by the learned (Adhoc) Additional District & Sessions Judge, City Civil & Sessions Court, Court No. 21, Ahmedabad below Exh. 1 in Civil Suit No. 2555/2008 by which the learned trial Court has permitted the respondent-original plaintiff to withdraw the said suit.
2. The respondent-original plaintiff instituted Civil Suit No. 2555/2008 in the City Civil Court at Ahmedabad against the applicants-original defendants only for permanent injunction. It appears that in the said suit the respondent-original plaintiff submitted an application, Exh. 6/7 for interim injunction, which came to be rejected by the learned trial Court vide order dated 21/04/2009. It appears that thereafter the respondent-original defendant filed another suit, being Civil Suit No. 1735/2011 before the City Civil Court, Ahmedabad, for specific performance of agreement to sell. In the said suit also the respondent-original plaintiff submitted interim injunction application, which also came to be dismissed on 13/02/2012. It appears that thereafter the respondent-original plaintiff submitted another application, Exh. 33 for taking the matter on board for withdrawal of Civil Suit No. 2555/2008. It appears that the said application, Exh. 33 was along with purshis, Exh. 34 dated 29/02/2012 for withdrawing the suit. It is the case on behalf of the applicants-original defendants that the learned advocate appearing on behalf of the applicants-original defendants had put an endorsement that he shall file reply to the conditional withdrawal. It is the case on behalf of the applicants-original defendants that despite the same the learned trial Court has permitted the respondent-original plaintiff to withdraw the aforesaid Civil Suit No. 2555/2008 conditionally. Being aggrieved and dissatisfied with the impugned order passed by the learned trial Court permitting the respondent-original plaintiff to withdraw Civil Suit No. 2555/2008, the applicants-original defendants have preferred the present Civil Revision Application under Section 115 of the Code of Civil Procedure.
3. Ms. Lopa Bhatt, learned advocate appearing on behalf of the applicants-original defendants has vehemently submitted that when the applicants-original defendants objected to withdrawal of the suit conditionally by the respondent-original plaintiff, the learned trial Court ought not to have permitted the respondent-original plaintiff to withdraw the suit conditionally. It is submitted that in the application, Exh. 34 it was submitted by the respondent-original plaintiff that he has subsequently filed the suit for specific performance of the sell with respect to the very property and, therefore, he is withdrawing the suit. It is submitted that by permitting the respondent-original plaintiff to withdraw the suit conditionally the right/defense of the applicants-original defendants in the subsequent suit, being Civil Suit No. 1735/2011, to contend that the said suit is barred by res judicata and/or other defenses with respect to the maintainability of the subsequent suit for the relief sought in the said suit are affected and, therefore, it is requested to allow the present Civil Revision Application.
4. In response to the notice issued by this Court, Shri Viral K. Salot, learned advocate has appeared on behalf of the respondent-original plaintiff. It is submitted that as such he has no objection if suitable observations are made that withdrawal of the suit would be unconditionally and the respondent-
original plaintiff is permitted to withdraw the aforesaid suit.
5. Heard the learned advocates appearing on behalf of the respective parties at length. Having heard Ms. Lopa Bhatt, learned advocate appearing on behalf of the applicants-original defendants, it appears that apprehension on the part of the applicants-original defendants is that by permitting the respondent-original plaintiff to withdraw Civil Suit No. 2555/2008, the defenses, which are available to the applicants- original defendants in the subsequent suit, would be affected. It is apprehended that the defenses, such as the subsequent suit is barred by res judicata and/or in view of filing of the earlier suit, which has been withdrawn, the subsequent suit for specific performance of the agreement to sell, which could have been prayed in the earlier suit, would not be maintainable and/or is required to be dismissed, are likely to be affected. However, it is required to be noted that as such by passing the impugned order, the learned trial Court has not stated that the respondent-original plaintiff is permitted to withdraw the suit conditionally. The learned Judge has solely permitted the respondent-original plaintiff to withdraw the suit and, therefore, the apprehension on the part of the applicants-original defendants stated herinabove, are not well founded and as agreed by the learned advocate appearing on behalf of the respondent-original plaintiff it is observed that the respondent- original plaintiff is permitted to withdraw Civil Suit No. 2555/2008 unconditionally. As agreed by the learned advocate appearing on behalf of the respondent-original plaintiff by permitting the respondent-original plaintiff to withdraw Civil Suit No. 2555/2008 unconditionally, it may not be construed that any of the defenses of the applicants-original defendants in the subsequent suit, being Civil Suit No. 1735/2011, inclusive of all the defenses with respect to res judicata and/or the defense that the relief for specific performance of agreement of sell was not prayed in the earlier suit, which has been withdrawn and, therefore, the second suit would be maintainable and/or no relief can be granted to the respondent-original plaintiff in the subsequent suit, are not affected and the same shall be considered in accordance with law and on its own merits as if the earlier suit has been withdrawn unconditionally.
6. With this, the present Civil Revision Application is disposed of.
(M.R. SHAH, J.) siji