CIVIL APPEAL 4 of 2019 on 3 August 2012

0413.12.23

Ct. No. 04

akd

F.A. 204 of 2004

CAN 1 of 2008 (Old No. CAN 8066 of 2008)CAN 2 of 2008 (Old No. CAN 8067 of 2008)CAN 6 of 2023CAN 7 of 2023

Sanjay Saraf & Ors.Vs.

Bharat Petroleum Corporation Limited.

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Mr. Joyjit Ganguly,Mr. Debangshu Dinda.

… for the appellants.

Mr. R. L. Mitra.

… for the appellant nos. 2-4.

Re: CAN 6 of 2023 & CAN 7 of 2023

Heard the learned Counsel for the parties.

The petitioner in the aforesaid application hasprayed for withdrawal of the consent recorded in theorder dated 3[rd] August, 2012 passed in the instantappeal. The parties in the said order had agreed todismissal of the appeal as not pressed in view of thewritten instructions from the client which wascommunicated to the Court through the learnedCounsel.

The written consent of the parties specifically inrespect of the appellants before us is dated 30[th] July,2012; wherein the present applicants have put theirsignature instructing the learned Counsel appearing inthe appeal at that point of time that they do not want toproceed any further in the appeal and requesting thelearned Counsel to apply for disposal of the appeal fornon-prosecution.

By way of the present application a plea has beenraised that the consent for withdrawing the appeal wasgranted under a mistake. Learned Counsel has alsosubmitted that the appellants were misled in to granting the consent for dismissal of the appeal as notpressed and in support of his contention he has placedreliance on a decision of the Apex Court in case of JetPly Wood (P) Ltd. & Anr. vs. Madhukar Nowlakha & Ors.reported in (2006) 3 SCC 699.

We have gone through the application and heardthe learned Counsel and find that the reliance placedon a decision of the Apex Court is misplaced in thefacts and circumstances of the present case. From bareperusal of the order passed in the case of Jet Ply Wood(supra) it is obvious that the Apex Court had found thepetitioner to be misled into making an applicationbased on misrepresentation.

In the instant case we do not find that there isany material to show that the written consent ascommunicated under instruction dated 30[th] July, 2012was based on any mistake or misrepresentation. Otherthan the averments in this regard in the application,there is no material to show that there was anymisrepresentation on the part of the parties leading tothe consent being granted by the applicant. Rather, wefind that the consent was granted after execution of afresh lease dated 2[nd] November, 2012, prior torecording of the consent by this Court. We further findthat there are other subsequent developments alsosuch as notification for acquisition of the subject landsand conclusion of such proceedings under Section 5(3)of the West Bengal Thika Tenancy (Acquisition andRegulation) Act, 2001 in Misc. Case No. 4 of 2019wherein the present appellant was a party and hadappeared and wherein the concerned property wasdeclared as Thika land on 17.5.2022; and filing ofWPLRT No. 101 of 2022 by the present appellantwherein he claims that certain orders were passed on25.08.2022. We do not find that there was any mistake or misrepresentation at the time when the consent wasgranted by the present appellant for dismissal of theappeal as not pressed.

The applicant will be at liberty to availappropriate remedy before the appropriate forum withrespect to the above noticed facts leading to thedismissal of the appeal as not pressed. These factsnoticed above which are events subsequent to dismissalof the appeal as not pressed, cannot be made the basisof withdrawing the consent, but may constitute a causeof action for invoking the Court / forum of competentjurisdiction for redressal of the grievances that mayremain.

We find that no case is made out for restoration,or withdrawing the consent by the appellant, as thesubsequent developments cannot be made the basis ofresiling from the conscious written consent granted bythe appellant and recorded in the order dated03.08.2012 for withdrawal of the appeal.

The application is accordingly dismissed.

Since we have gone into the merit of thepetitioners’ prayer, CAN 7 of 2023 stands disposed of.

(Harish Tandon, J.)

(Madhuresh Prasad, J.)