Revision against appellate court order dismissing appeal as withdrawn after compromise based on brother's statement. Court held that since suit was filed jointly and both represented by one counsel, compromise binds the petitioner. Revision dismissed.
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CR No. 1957 of 2009 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Civil Revision No. 1957 of 2009 (O&M) Date of decision: 16.4.2009
Gaurav Jain
.. Petitioner
v.
Dwarka Dass Sethi and another
.. Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL
Present: Mr. Pankaj Bhardwaj, Advocate for the petitioner.
Rajesh Bindal J.
Challenge in the present petition is to the order dated 2.3.2009, passed by the learned court below, whereby the dispute between the parties was settled and the appeal filed by respondent No. 1 was dismissed as withdrawn.
Learned counsel for the petitioner submitted that initially the petitioner along with his brother-Vikas Jain-respondent No. 2 had filed a suit for permanent injunction against respondent No. 1, which was decreed on 21.3.2007. Aggrieved against the judgment and decree, respondent No. 1 filed appeal before the learned lower appellate court, where on the statement of Vikas Jain, brother of the petitioner, Local Commissioner was appointed and after considering the report and the statement made by him in the Court, the dispute was compromised and the appeal filed by respondent No. 1 was dismissed as withdrawn. However, in the entire process, the petitioner was not associated, though he was also one of the respondents in the appeal filed by respondent No. 1 before the learned lower appellate court. The submission is that without the statement of the petitioner, the dispute could not have been compromised because he was also one of the respondents in the appeal filed by respondent No. 1 before the learned lower appellate Court.
After hearing learned counsel for the petitioner, I do not find any merit in the submissions made. The suit was filed by the petitioner along with his brother-respondent No. 2 for permanent injunction. They were represented by one counsel. During the pendency of the appeal, Vikas Jain, brother of the petitioner, appearing along with their counsel, agreed for appointment of a Local
CR No. 1957 of 2009 [2]
Commissioner. After considering the report of the Local Commissioner, the matter was compromised between the parties with the intervention of the Court. Statements of Vikas Jain, brother of the petitioner, and respondent No. 1-Dwarka Dass Sethi were recorded on 26.2.2009. In terms of the compromise, it was agreed that in case the width of the staircase was beyond 3'-11” excluding the principal wall adjoining the staircase, respondent No. 1 was to demolish the same within one month. It was in view of the compromise arrived at between the parties, the appeal was dismissed as withdrawn. Once the petitioner along with his brother-respondent No. 2 had filed a suit jointly claiming same relief and both of them were represented by one counsel, in case the dispute has been compromised on the statement of brother of the petitioner, being one of the parties to the litigation in the presence of the common counsel engaged by them, I do not find any reason to hold that the compromise arrived at will not hold good for the petitioner as well.
Accordingly, the present petition is dismissed.
(Rajesh Bindal) Judge 16.4.2009 mk
1 issue framed by the court
Whether a compromise arrived in an appeal based on the statement of the petitioner's brother holding a joint suit, while both were represented by one counsel, is valid as against the un-appearing peti
Gaurav Jain
Dwarka Dass Sethi
Vikas Jain
Rajesh Bindal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
