Heard counsel for the petitioner and perused the record.
Suit no. 5 of 2007 filed against petitioner M/s Nawab Motors for eviction from the property, was dismissed in default by the court below on 23.9.2008 as neither the plaintiff nor the defendant opposite party appeared on that day.
A recall/restoration application was filed in the aforesaid suit by the plaintiff under Order IX, Rule 4 read with section 151,C.P.C. and section 5 of the Limitation Act, supported with affidavit on 10.3.2010.
Counsel for petitioner submits that respondent has entered into an agreement of sale with Anuj Kapoor and Anil Kapoor against the property and the respondent has received Rs. 45,00,000/- from them. Anuj Kappor and Anil Kappor has also taken possession from the petitioner.
Counsel for the petitioner has assailed the order dated 17.5.2010 passed on application Paper no. 4C in Misc. case no. 35 of 2010, M/s Metal Fab Industries Vs. M/s Nawab Motors and the order dated 28.8.2010 passed on application Paper no. 9C in Misc. case no. 61 of 2010, M/s Metal Fab Industries Vs. M/s Nawab Motors.
The order dated 17.5.2010 is challenged on the ground that court below has committed an illegality in allowing the delay condonation application of the respondent by accepting the averments made in the recall application without appreciation of facts.
The order dated 28.8.2010 is assailed on the ground that court below has illegally allowed the recall application filed by the respondent by accepting the averments of the recall application. According to him, the agreement was signed between the respondent and third party to the suit proceedings and hence it does not bind the petitioner.
Perusal of the order dated 17.5.2010 indicates that the court had passed the order after hearing the parties and had arrived at the conclusion that from perusal of the order sheet as well as settlement agreement dated 19.1.2009 arrived at between the parties before Delhi High Court, it is clear that parties had agreed to settle their dispute through mediation/conciliation proceedings. It also appears that the parties had mutually settled their dispute and had moved a joint application under Order 23 rule 3 read with section 151, C.P.C. for passing a decree in terms of the agreement dated 19.1.2007 and addendum dated 13.4.2009. On the aforesaid ground, the court below allowed the application paper no. 4C and condoned the delay in moving the application.
By another order impugned in the writ petition dated 28.8.2010 , application paper no. 9C was allowed recalling the order dated 23.9.2008 and restoring the case to its original number and status. The court below has noted the fact that according to the plaintiff, the parties to the dispute in suit had entered into a dialogue for compromise in the matter and thereafter the respondent had moved application dated 12.8.2008 in this regard for adjournment of the case which was fixed for 23.9.2008 in the said circumstances. The court further noted the fact that since talks for agreement had progressed, hence the parties to the suit did not appear on 23.9.2008 and the suit was dismissed under Order 9 Rule 3, C.P.C. But after the suit was dismissed, the defendant in suit took a somersault and did not want to compromise the matter. It was in the aforesaid circumstances that the plaintiff had moved application that he had not appeared on 23.9.2008 on bonafide belief that talks for compromise were going on and it was for this reason that respondent was also not present on that day.
The recall application has been allowed after hearing the parties and on perusal of the record by the court below which has believed version of the plaintiff that the parties had not appeared as talks on compromise had progressed which is supported by record of the court below and in the circumstances the application paper no. 9C has been allowed.
The contention of the counsel for petitioner that court below has allowed the delay condonation application and recall application without application of mind, appears to be incorrect and against the material on record. The court has discretion in the matter to recall the order and on being satisfied with the cause shown, it has recalled the orders. In the facts and circumstances, it cannot be said that orders impugned are illegal and arbitrary. As regards the submission of counsel for the petitioner that agreement is not binding on him, he may persue the suit on merits.
For the reasons stated above, there appears to be no infirmity or illegality in the orders impugned. The petition is accordingly dismissed. The court below shall proceed in the matter strictly in accordance with law without being influenced by any observation made in this order. No order as to cost.
Dt/-27.9.2010 SNT/