The Jammu, Kashmir & Ladakh High Court has dismissed an Appeal with costs while upholding the trial court’s decision to grant a recall application.

The Court emphasized that when a statutory remedy is available to a litigant, courts must not curtail such remedial mechanisms. "As a matter of policy, courts must not curtail statutorily provisioned remedial mechanisms available to the parties," the Court observed.

The Single Bench of Justice M.A. Chowdhary observed that the trial court was correct in allowing the recall application, as denying liberty to file for restoration would have deprived the respondents of any legal remedy.

The Bench referred to the Supreme Court judgment in Jet Ply Wood Private Ltd. & Anr. Vs. Madhukar Nowlakha & Ors., 2006(3), which held that a withdrawal order obtained through mistake, misrepresentation, or subterfuge could be set aside under Section 151 of the Code of Civil Procedure (CPC).

Case Background

The dispute arose from an out-of-court settlement wherein the respondents withdrew their suit against the petitioners without explicitly reserving the right to claim relief later. Under the terms of the settlement, the petitioners had agreed to hand over possession of the disputed property upon receiving ₹39 lakh. However, the respondents later filed for restoration, alleging that the petitioners had failed to honor their commitment.

The Trial Court allowed the recall of the withdrawal order, prompting the petitioners to challenge the decision before the High Court. They argued that since the respondents had withdrawn the case without seeking liberty to pursue further claims, they were barred from reviving the suit.

Court’s Observations

The Court rejected the petitioners’ argument, holding that since the trial court had not passed a decree based on the settlement, the respondents had no statutory remedy available, leaving them without legal recourse. It affirmed the trial court’s decision to revive the suit due to the petitioners’ failure to comply with the settlement terms.

Addressing the petitioners' plea of limitation, the Court ruled that the respondents had a recurring cause of action since their property remained unlawfully occupied by the petitioners. Consequently, the argument on limitation was deemed misconceived and rejected.

Finding the appeal meritless, the Court dismissed the petition with a cost of Rs. 10,000, payable by the petitioners to the respondents as a condition precedent for defending the revived suit before the trial court. "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 Single Bench ordered.

Cause Title: Mohammad Ishaq Dar & Anr. v. Usman Syed Shah & Ors. [CM(M) No.359/2024; CM No. 5803/2024]

Appearance:-

Petitioner: Senior Advocate A.M. Dar, Advocate Danish Majid Dar

Respondent: Advocate J.H.Reshi

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Justice MA Chowdhary

Sukriti Mishra

Legal Correspondent

Sukriti Mishra is a Legal Correspondent at Verdictum. She extensively covers the Supreme Court. She has completed her graduation with BA. LL.B (Hons.) from The ICFAI University, Dehradun. Sukriti started covering courts in March 2022, she has previously worked with another legal news portal, where she extensively covered the Delhi High Court and Trial Courts.