Excelsior Correspondent
Srinagar, Feb 11 : High Court has dismissed the appeal with costs challenging the recalling order of trial court and observed that the courts must not curtail statutory remedies available to the litigants.
Justice M A Chowdhary dismissed the appeal filed by senior counsel A. M. Dar challenged the trial court order. The trial court has recalled its earlier order whereby the suit filed by one of the parties was withdrawn unconditionally as the dispute between the parties was arrived at settlement and the aggrieved party withdrew the suit filed against its opponent on that basis.
The dispute arose from an out-of-court settlement wherein the respondent-aggrieved party withdrew the suit filed before the court below against the petitioner-opponent without explicitly reserving the right to claim relief later. Under the terms of the settlement, the petitioner-opponent had agreed to hand over possession of the disputed property upon receiving Rs 39 lakh.
However, the respondent-aggrieved-party later filed an application for recalling of order of withdrawal of suit before the court below, alleging that the petitioner-opponent had failed to honor their commitment.
The opposite party challenged the order of recalling passed by the trial court on the ground that once a suit is withdrawn unconditionally without liberty to file afresh, the aggrieved party was barred from re-litigating on the same cause of action and by allowing the application for recall, the trial court has misapplied this provision as no liberty was sought or granted to avail remedy.
Justice Chowdhary refused these arguments made by the senior counsel and said that when there is a statutory remedy available to the litigant, there is no question of a court granting liberty to avail such remedy as it remains open to the party to work out his remedies in accordance with law.
The court while holding the decision of trial court as well reasoned said, there was no occasion for the trial court to deny liberty to file restoration and the consequent grant of the recall application by the impugned order, on this ground alone, survives and affirmed the trial court’s decision to revive the suit due to the petitioner-opponent party’s failure to comply with the settlement terms. “Further, as a matter of policy, courts must not curtail statutorily provisioned remedial mechanisms available to the parties”, Justice Chowdhary added.
The court has held the appeal as meritless and dismissed the same with cost of Rs 10,000 to be paid to the aggrieved party. “Viewed thus, the petition is found to be without any merit and substance and is liable to be dismissed, as such, is dismissed with costs, which is quantified as Rs.10,000 to be payable by the petitioners herein, as defendants before the court below, which shall be condition precedent to defend their suit before the trial court,” the court ordered.
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