Court No. - 18
Case :- MATTERS UNDER ARTICLE 227 No. - 26 of 2018 Petitioner :- Fakhruddin And Another Respondent :- Marghoob Alam And 23 Others Counsel for Petitioner :- Javed Husain Khan,Gulrez Khan,Sri W.H. Khan Counsel for Respondent :- Surendra Prasad Mishra
Hon'ble Mahesh Chandra Tripathi,J.
Heard Shri Gulrez Khan, learned counsel for the petitioners and Shri S.P. Mishra appearing for respondent nos.1 to 4.
The petitioners are before this Court assailing the order dated 20.11.2017 passed by Addl. District Judge/ Fast Track Court-I, Amroha allowing Civil Revision No.30 of 2015 (Qudrat Ullah & Ors. v. Nasim Ahmad & Ors.) and setting aside the order dated 28.7.2016 passed by Civil Judge (JD) Amroha in O.S. No.365 of 2004 (Munauwar Ali & Ors. v. Kudratullah) pending in the court of Civil Judge, Maroha whereby withdrawal of suit application paper no.145C by two of the plaintiff nos.6 and 7 (the petitioners) was allowed and the plaintiff nos.6 and 7 were allowed to withdraw the suit while allowing the suit to continue between rest of the plaintiffs and defendants.
Learned counsel for the petitioners submits that Original Suit No.365 of 2004 was filed by Munauwar Ali & 10 Ors. against Qudrat-ullah and 16 ors. for permanent injunction restraining the defendant nos.1 to 6 from interfering in plaintiffs' right from realizing offering (Chadhawa) in Dargah Hazrat Shah Vilayat Sahab and from causing interference in plaintiffs status of Mujavirs and realizing Charhawa Chiragi etc. Learned counsel for the petitioners states that no doubt during the pendency of suit a compromise paper no.144 ka was filed in April, 2005 by the parties to decide the suit in terms of the compromise but at no point of time the said application was ever decided. Finally the plaintiff-petitioners moved application paper no.145 on 12.8.2005 that in view of the aforesaid compromise they do not want to prosecute the suit and the same may be dismissed. Finally the said application paper no.145 was allowed by order dated 28.7.2016. The same has been assailed by the defendant- respondents by preferring Civil Revision No.30 of 2016, which has been allowed by the order impugned dated 20.11.2017.
In this backdrop, learned counsel for the petitioners made submissions that firstly the revision was not maintainable and secondly once application was moved by the plaintiffs that they are not inclined to prosecute the suit, the same may be dismissed and the same cannot be objected by the defendant-
respondents in view of law laid down by Hon'ble Apex Court in Anil Kumar Singh v. Vijay Pal Singh & Ors., AIR 2017 SC 5587.
Per contra, learned counsel for the respondents has vehemently opposed the writ petition and submitted that rightful order has been passed by the revisional court and the matter is only relegated to the trial court to decide the said application on the merits of the case. Moreover the entire claim has been set up on the basis of compromise and it has been asked that in terms of the compromise the plaintiff-petitioners are not willing to prosecute the suit and the suit may be dismissed as withdrawn. On one hand the plaintiffs are pressing the compromise and on the other hand they say that the said benefit cannot be extended.
Confronted with this, learned counsel for the petitioners on the basis of instructions very fairly states that at no point of time any formal decree has been passed in terms of compromise and as such he is inclined to move proper application for withdrawal of the suit not in terms of the compromise.
Once the categorical statement of fact has been given by learned counsel for the petitioners, the Court is of the considered opinion that the said factual aspect of the matter may be brought into notice to the trial court forthwith. In case any such application is moved within ten days for withdrawal of the suit in question, the same would be considered and decided within further three weeks time.
The writ petition is disposed of accordingly.
Order Date :- 12.9.2018 SP/