CM APPL. 16638/2009 (exemption)

Aruna Suresh, ]. (Oral) - Exemption allowed subject to all just exceptions. Application stands disposed of accordingly.

Appellants by way of this application have sought setting aside of the order of this Court dated 20th July, 2009 and revival of the appeal to be heard and decided on merits on the grounds that appellants never filed any affidavit nor had authorized the Counsel appearing on their behalf to record any compromise for and on behalf of the appellants.

2. It is submitted by Mr. Rajan Bhatia, learned Counsel appearing for the appellants that appellants were never present in the Court and had never compromised their dispute with the respondents. After the order of this Court dated 20th July, 2009, the appellants had filed Special Leave Petition (SLP) in the Supreme Court challenging the said order. Therefore, there was no reason for the appellants to file Affidavit of Undertaking containing the terms and conditions of the alleged settlement. He emphasized that the SLP was dismissed with liberty to the appellants to approach this Court for recalling of its order on the ground that no. consent was given. Therefore, he has filed this application since the order of the Supreme Court makes it clear that the said impugned order has to be recalled and the appeal has to be heard on merits, hence, this application.

3. SLP was dismissed with liberty to the appellants to approach this Court for recalling of its order dated 20th July. 2009. However, the Supreme Court did not reflect on the merits of the impugned order and left it open for this Court to decide. Since, liberty was granted to the appellants to approach this Court to challenge the order dated 20th July, 2009, this application has been entertained. However, application has to be decided on its own merits. Grant of liberty to the appellant to file the application ipso facto does not entitle the appellant to claim recall of the impugned order.

4. Mr. Amit Sethi, learned Counsel for the respondents who has appeared on receipt of advance notice, has submitted that SLP was filed from the same Chamber to which the Counsel for the appellants Mr. Jabar Singh and Mr. H.C. Kharbanda belong. It is pertinent that Mr. Jabar Singh had appeared before the Supreme Court on 24.8.2009 when SLP was dismissed. He was assisted by Mr. S.C. Maheshwari, Ms. Sandhya Goswami and Mr. M.P.S. Tomar, Advocates. Mr. Jabar Singh, who had been 4 appearing as Counsel in this case had made a categorical statement on behalf of the appellants, recorded in the order dated 20th July, 2009. It was during the arguments on the appeal being heard by this Court when the Counsel for the appellants had made the statement indicating the willingness of the appellants to hand over the vacant possession of the suit property to the respondents and also to pay arrears of rent/ damages accumulated till date and rent/damages which would became due to be paid to the respondents every month. It was on his statement that this Court asked the appellants to file a detailed affidavit of undertaking within a week with advance copy to the Counsel for the respondents. The matter was listed for 29th July, 2009. It seems that 5LP was also filed by the appellants through the same Counsel on the same day i.e. on 29th July, 2009. On 29th July, 2009, the Counsel for the appellants, Mr. Jabar Singh sought, one weeks time to file the affidavit and on his request, the matter was listed for 12th August, 2009. On 12th August, 2009, after taking into consideration the undertakings of the appellants given in the form of Affidavits and also after recording of no objection on behalf of the respondents for grant of time to the appellants to vacate the premises, the Court dismissed the appeal. In fact, order dated 12th August, 2009 contained all the terms and conditions of the settlement arrived at inter se the parties.

5. Though, initially the appellants denied their signatures on the affidavits; rather empha