Court No. - 19
Case :- SECOND APPEAL No. - 2651 of 1983 Appellant :- Phool Chand Respondent :- Raja Ram And Others Counsel for Appellant :- S. Rai,Ali Hasan Counsel for Respondent :- H.S.N. Tripathi,A.K.Shukla
Hon'ble Saurabh Shyam Shamshery,J.
1. This second appeal was earlier decided by order dated 18.04.2007 which is reproduced as under:
"Compromise Application No. 12821 of 1998 was filed in this Court. It was sent to the court below for verification by the order dated 21.2.1998. The District Judge, Allahabad passed the following order on 25.4.1998:-
"Called out. The applicant and O.Ps. 1 and 2 are present along with their counsel. The compromise filed in the Hon'ble High Court which has been sent for verification has been duly verified by appellant and respondent Nos. 1 and 2. It may be added that in the Hon'ble High Court the compromise was filed by the appellant and respondent No. 1 alone. However, appellant no. 2 is also agreeable to the compromise and has also verified the compromise."
In view of the aforesaid, the Appeal is decided in terms of the compromise entered into between the parties.
This order shall be made part of the decree."
2. It appears that Civil Misc. Recall Application No. 122615 of 2007 dated 16.05.2007 was filed on behalf of Respondent-3 to recall the above referred order dated 18.04.2007. This Court vide order dated 26.09.2007, recalled the order dated 18.04.2007 and appeal was restored to its original number. For reference the order dated 26.09.2007 is reproduced as under:
"on 18.4.2007 this Court passed the following order:
"Compromise Application No. 12821 of 1998 was filed in this Court. It was sent to the court below for verification by the order dated 21.2.1998. The District Judge, Allahabad passed the following order on 25.4.1998:-
"Called out. The applicant and O.Ps. 1 and 2 are present along with their counsel. The compromise filed in the Hon'ble High Court which has been sent for verification has been duly verified by appellant and respondent Nos. 1 and 2. It may be added that in the Hon'ble High Court the compromise was filed by the appellant and respondent No. 1 alone. However, appellant no. 2 is also agreeable to the compromise and has also verified the compromise."
In view of the aforesaid, the Appeal is decided in terms of the compromise entered into between the parties.
This order shall be made part of the decree."
An application has now been filed by respondent No. 3 for recall of the aforesaid order on the ground that respondent No. 3 had never agreed to the compromise. On 18.7.2007 three weeks' time was granted to the learned counsel for the appellant to file a counter affidavit. Since the counter affidavit was not filed within the stipulated time, two weeks' time was again granted by this Court on 11.9.2007 to the appellant to file the reply.
Learned counsel for the appellant states that his client is not responding. In such circumstances, when respondent No. 3 had not agreed for the compromise, the order dated 18.4.2007 is recalled and the Second Appeal is restored to its original number.
The appeal may now be listed for hearing in due course."
3. Again this appeal was dismissed for want of prosecution on 10.04.2017 and the order was corrected vide order dated 27.04.2017. The corrected order is reproduced as under:
"List has been revised. No one appears to press this appeal even though Sri A.K. Shukla, learned counsel for the respondent is present. The appeal is accordingly, dismissed for want of prosecution."
4. Thereafter another restoration application being Civil Misc. Restoration Application No. 319500 of 2017 was filed. Delay in filing Restoration Application No. 319500 of 2017 was condoned and appeal was restored to its original number vide order dated 16.12.2019. For reference the order dated 16.12.2019 is reproduced as under:
"Heard Sri I.M. Tripathi, counsel for the appellant and Sri Arun Kumar Shukla, counsel for respondent no. 3.
The above-mentioned second appeal was dismissed for want of prosecution on 10.4.2017. Thereafter application for restoration has been filed. There is delay of 100 days in filing said application. The cause shown for delay in application supported with affidavit seems sufficient. Therefore, the delay is condoned and the Second Appeal No,. 2651 of 1983 is restored to its original number subject to payment of cost of Rs. 2000/- to be paid in the High Court Legal Services Authority.
This case be listed for consideration of substitution application."
5. A Substitution Application No. 319729 of 2017 alongwith Delay Condonation Application No. 319727 of 2017 was also filed by appellant to bring on record the legal heirs of Respondent-1, Raja Ram, which is still pending.
6. Issue notice to proposed legal heirs of Respondent-1 returnable at an early date. Step be taken within four weeks.
Order Date :- 17.12.2021 AK