CHANDER KANTA Vs. ANJUM ISHNA ASHARIYA

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India has been preferred by the legal representatives of one Shri Shanti Swaroop. The said Shri Shri Shanti Swaroop had filed a suit for possession of certain lands at Panchkuian Road, New Delhi against the respondent herein. The respondent herein was contesting the said suit. An application dated 24th January, 1992 was filed by the parties in the said suit. It was inter alia stated therein that the plaintiff Shri Shri Shanti Swaroop was unconditionally withdrawing the suit and giving up his claim in the suit; that the parties be left to bear their own costs; that neither party thereafter shall have any claim of any sort whatsoever against each other; that the compromise was in full & final settlement of all disputes between the parties against each other; that the heirs and legal representatives of Shri Shanti Swaroop will have no claim whatsoever over the respondent and the property in dispute. The prayer made in the application was for dismissal of the suit as withdrawn leaving the parties to bear their own costs. The said application besides being signed by the said Shri Shanti Swaroop and on behalf of the respondent and their respective advocates was also signed by Shri Subhash Chand one of the petitioners herein who has been pursuing these proceedings on behalf of the other heirs of Shri Shanti Swaroop also. The said Shri Subhash Chand endorsed on the application that he being the son of Shri Shanti Swaroop approved of the compromise and will have no claim against the respondent.

(2.) The court of Civil Judge before whom the suit was pending recorded the statement of Shri Shanti Swaroop on oath. Shri Shanti Swaroop in the said statement also stated that he had understood the contents of the compromise application and wants to withdraw the suit. The Civil Judge vide order dated 24th January 1992, on the basis of the statement and the application, allowed the suit to be withdrawn and accordingly dismissed the suit.

(3.) It is informed that Shri Shanti Swaroop died on 19th July, 1992. On 19th October, 1992 Shir Subhash Chand being the son of Shri Shanti Swaroop filed an application under Order 9 Rule 9 of the CPC for restoration of the suit. It was inter alia stated that therein that Shri Shanti Swaroop had entered into the compromise with the respondent for withdrawal of the suit and his claims therein, in consideration of the respondent having agreed to pay a sum of Rs.75,000/- to Shri Shanti Swaroop and of which Rs.25,000/- was paid and the balance Rs.50,000/- remained to be paid; that Shri Shanti Swaroop had agreed to withdraw the suit on the premise that the balance sum of Rs.50,000/- will also be paid by the respondent to him; however the respondent failed to pay the said sum of Rs.50,000/- and which fact was brought by Shri Shanti Swaroop to the notice of the High Court of Delhi in RFA No.793/1988 between the parties and owing whereto the compromise to be recorded in the RFA also was not recorded. It was thus pleaded that the suit be restored to the original number and be tried on merits. It was further pleaded that Shri Shanti Swaroop prior to his death had not been feeling well and had also been hospitalized and thus could not move the application himself but the said Shri Subhash Chand being the legal heir of Shri Shanti Swaroop was entitled to apply. Subsequently, an application for condonation of delay in applying for restoration was also filed.