Delhi High Court
Amarjit Singh Kalra (Decd.) Thr. ... vs Pramod Gupta (Decd.) Lrs. & Ors. on 5 April, 2013
Author: Sanjiv Khanna
$~Special Bench-1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA 309/1980
AMARJIT SINGH KALRA (DECD.) THR. LRS...... Appellant
Through Ms. Maldip Sidhu, Advocate.
Mr. Sunil Dutt Baloni, Advocate for Mr. S.S.
Panwar, Advocate for Appellant Nos.10(a),
10(b), 10(c), 18(b), 18(c), 19(a), 19(b), 19(c),
19(d), 23, 28(b), 28(c), 28(d), 39(a), 39(b),
39(d), 39(e), 39(f) & 39(g).
versus
PRAMOD GUPTA (DECD.) LRS. & ORS. ..... Respondent
Through Mr. Manish Vashisht, Advocate
with Mr. Sameer Vashisht and Mr. Abhinav
Sharma, Advocates for R-1(b).
Mr. Rakesh Kumar Sharma and Mr. Pankaj
Veram, Advocates.
Mr. Rahul Malhotra, Advocate for R-8, 12 to
15.
Ms. Shobhna Takiar, Advocate for DDA.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE S.P. GARG
ORDER
% 05.04.2013
C.M.No.2288/2013
This an application on behalf of Sanjay Gupta, respondent
No.1(b) for recall of the order dated 28th August, 2012 passed in
C.M.Nos.13033/2004, 13034/2004, 13035/2004 and 13036/2004.
2. C.M.No.13033/2004 was filed by the legal representatives of
Tek Chand under Order 41 Rule 4 and Order 22 Rule 4 CPC for
bringing them on record. C.M.No.13034/2004 was filed under Section
5 of the Limitation Act for condonation of delay in filing of C.M.
No.13033/2004.
3. C.M.No.13035/2004 was filed by legal representatives of Deep
Chand under Order 41 Rule 4 and Order 22 Rule 4 CPC for bringing
them on record. C.M.No.13036/2004 was filed under Section 5 of the
Limitation Act for condonation of delay in filing of the first
application.
4. Reply dated 28th September, 2005 to these applications were
filed by the applicant-respondent No.1(b). However, these applications
remained pending. We only note that these applications were
contested in the reply on the ground that neither Tek Chand nor Deep
Chand were parties to the appeal or in the reference proceedings.
5. During the pendency of these applications, as per the respondent
No.1(b), he and some others entered into a compromise/out of court
settlement with several persons including the applicants in
C.M.Nos.13033/2004 to 13036/2004. The non-applicants i.e. the
applicants in C.M.Nos.13033/2004 to 13036/2004 accept their
signatures on one page and the factum that they had received and
encahsed the cheques, but today they are disputing the purported
settlement on various grounds.
6. An application C.M.No.4184/2012 was filed under Order 23
Rule 3 CPC for recording of the settlement/compromise. The said
application is still pending.
7. In the reply filed by the non-applicants to the present
application, they have stated as under:-
"..............The entire process of alleged
agreement is so interesting which would become
vivid only if few dates are looked into i.e., the date of
agreement 31-Jan-2012, date of application of
compromise 29-Feb-2012, the accompanying
affidavit dated 1-March-2012, the date of cheques for
making payment to appellants are dated 21-Apr-
2012, 28-Apr-2012 and they same were en-cashed in
the month of April and May 2012."
8. Applications C.M.Nos.13033/2004 to 13036/2004 along with 32
other applications were disposed of on 28th August, 2012. For the sake
of completeness, we are reproducing the exact order passed on the said
date viz. the said applications:-
"CM APPL.No.13033/2004 & 13034/2004
These are applications for bringing on record legal
representatives of appellant No.35 and Section 5 of
Limitation act for condonation of delay in filing the
first application. No reply to these applications has
been filed. Learned counsel for the non-applicants
state that they have no objection if the present
applications are allowed but the statement should not
be construed as admitting any claim/right of appellant
No.35 or his legal representative on merits. In view of
the statement made by the non-applicants, the
applications are allowed and disposed of on above
terms.
CM APPL.No.13035/2004 & 13036/2004
These are applications for bringing on record legal
representatives of appellant No.63 and Section 5 of
Limitation act for condonation of delay in filing of the
first application. No reply to these applications has
been filed. Learned counsel for the non-applicants
state that they have no objection if the present
applications are allowed but the statement should not
be construed as admitting any claim/right of appellant
No.63 or his legal representative on merits. In view of
the statement made by the non-applicants, the
applications are allowed and disposed of on above
terms.
9. Now it transpires that the non-applicants, who are applicants in
C.M.Nos.13033/2004 to 13036/2004, dispute and deny any settlement
with respondent No.1(b). The non-applicants have also filed an
affidavit to this effect in this Court and the matter is still pending
consideration. The non-applicants admit that they had received and
have also encashed the cheques, but allege there was no settlement or
agreement between them and the applicant and other parties.
10. It is clear from our order dated 28th August, 2012 that it was
virtually a consent order and was passed on the concession by the
counsel for the respondent No.1(b) in view of the fact that they were
under the belief that there was a settlement/compromise and
application C.M.No.4184/2012 was filed before the Court for
recording of the said compromise or settlement. Obviously
settlement/compromise could not have been recorded till the non-
applicants were impleaded and made parties. Till 28th August, 2012,
the non-applicants herein had not filed any letter or stated before the
Court that the so-called settlement/compromise relied upon by the
applicant is sham and is not binding on them. We also note that there a
factual inaccuracy in the order that no reply to the applications CM
Nos. 13033 to 13036/2004 were filed, whereas it is an admitted and
accepted position that replies were filed by the applicants and were on
record.
11. In these circumstances, we are inclined to recall our order dated
28th August, 2012 passed in C.M.Nos.13033/2004 to 13036/2004.
12. At this stage, we may notice the contention raised by the non-
applicants that an order of recall can only be passed in limited
circumstances as stated by the Supreme Court in Budhia Swain Vs.
Gopinath, (1999) 4 SCC 396. We have examined the said judgment,
but find that the present case would be covered by the limited set of
circumstances and the conditions stated and elucidated therein. We
refrain from going into specific details, least it causes prejudice to the
parties as C.M.Nos.13033/2004 to 13036/2004 have to be decided on
merits and C.M.No.4184/2012 is also pending consideration. It will be
just and fair, if the applications C.M.Nos.13033/2004 to 13036/2004
are disposed of on merits, rather on consent, which was granted under
an assumption that there was a settlement/compromise.
13. We clarify that the observations made in this order are for
disposal of the present application for recall and will not be binding
observations or finding recorded by the Court, while examining the
applications C.M.Nos.13033/2004 to 13036/2004 and C.M.
No.1484/2012 on merits.
14. The applications C.M.Nos.13033/2004 to 13036/2004 will be
listed before the regular Bench as per the roster.
SANJIV KHANNA, J.
S.P. GARG, J.
APRIL 05, 2013
NA/VKR
