Uttarakhand High Court
Shri Lakshmi Prashad Semwal vs Smt. Bhagwati Prasad And Others on 24 March, 2021
HIGH COURT OF UTTARAKHAND
AT NAINITAL
Second Appeal No.66 of 2014
Shri Lakshmi Prashad Semwal .....Appellant
Vs.
Smt. Bhagwati Prasad and others ...Respondents
Advocate : Mr. Pradeep Joshi, Advocate for the appellant.
Mr. Rajendra Dobhal, Senior Advocate assisted by Mr. Subhang Dobhal,
Advocate for the respondents.
Hon'ble Sharad Kumar Sharma, J.
In this second appeal, there is a pending Substitution
Application No.7086 of 2019, making a prayer for bringing on record the
heirs of deceased-respondent no.1, who is reported to have died on
22.09.2017. The Registry has reported that there is a delay of 517 days,
which has chanced in filing the substitution application. Accordingly, the
substitution application is supported with the Delay Condonation
Application No.7088 of 2019; as well as an application for setting aside
abatement.
2. After having considered the grounds taken in the delay
condonation application and also considering the fact that on the
substitution application, when the notices were issued to the proposed heirs
of the deceased-respondent no.1, they have been served with the notices
and they are now represented by Mr. Subhang Dobhal, Advocate. Hence,
the delay condonation and substitution application would stand allowed
and accordingly, the appellant is directed to make the necessary
amendment in the cause title of the second appeal. As soon as the
amendment as a consequence of allowing of the substitution application
today is carried by the appellant, in pursuance to this part of the order
passed today, the consequential effect of the compromise order which
follows hereafter would take its effect.
3. This is a defendant's second appeal, which was preferred by
the defendant/appellant, before this Court, being aggrieved against the
appellate court's judgment dated 19.04.2014, as was rendered in Civil
Appeal No.2 of 2012, Lakshmi Prashad Semwal vs. Smt. Bhagwati Prasad
and others, which was adjudicated by the court of District Judge,
Uttarkashi vide its judgment of 19.04.2014. The said Civil Appeal, was
arising out of a judgment and decree dated 02.02.2012, which was
rendered by the court of Civil Judge (Jr. Div.), Purola, District Uttarkashi
in Original Suit No.06 of 2010 Bhagwati Prasad vs. Laxmi Prasad Semwal
& others.
4. When the second appeal was instituted before this Court on
19.06.2014, it was admitted and an interim order was granted by the
Coordinate Bench on 20.06.2014. During its pendency a better sense
prevailed amongst the parties and they have entered into a settlement by
way of an agreement of 01.09.2020, laying down the terms and conditions
of the settlement, which was unanimously arrived at, and was agreeable
between the parties to the second appeal based on which a joint
application, under the joint signatures of both the counsels has been filed
before this Court being Misc. Appl. No.9055 of 2021 by invoking the
provisions contained under Order 23 Rule 3 of C.P.C.
5. After having considered the application and the terms of
settlement dated 01.09.2020, coupled with the fact that the factum of the
settlement, which has been arrived at between the parties, is also supported
by the respective affidavits, which has been made as part of the record with
the compromise application. Since now the parties have settled their scores
in terms of the agreement of 01.09.2020, coupled with the fact that since
the agreement has been signed by the parties, it would fall to be an
agreement within the ambit of the provisions contained under Order 23
Rule 3 and hence, the second appeal is decided in terms of the compromise
in view of the ratio laid down by the Hon'ble Apex Court in a judgment
reported in (2005) 4 Supreme Court Cases, 117, K. Venkatachala Bhat
and Another vs. Krishna Nayak (D) By. LRS. and Others wherein if a
compromise has been signed by the counsel itself of both the parties and
there is a joint application, that itself would suffice to meet the purpose of
Order 23 Rule 3 of the C.P.C., in that view of the matter, the second appeal
would stand decided in terms compromise dated 01.09.2020 and the
impugned appellate court's judgment would stand modified to that extent.
6. The Registry of this Court, is directed to formulate the decree
in terms of the compromise of 01.09.2020. Accordingly, the second appeal
stands disposed of in terms of the compromise dated 01.09.2020.
(Sharad Kumar Sharma, J.)
24.03.2021
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