Courts Must Not Deny Party's Statutory Remedies As A Matter Of Policy: Jammu & Kashmir High Court

While dismissing an appeal with cost and upholding the trial court order granting a recall Application, the Jammu, Kashmir & Ladakh High Court observed that when there is a statutory remedy available to a litigant, there is no dispute about a court granting liberty to avail such remedy as it remains open to the party to work out his remedies under the law.

A bench of Justice MA Chowdhary observed that in this case, 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. The court also said that, as a matter of policy, courts must not curtail statutorily provisioned remedial mechanisms available to the parties.

The court referred to Jet Ply Wood Private Ltd. & Anr. Vs. Madhukar Nowlakha & Ors. ' reported as 2006(3) SCC 699, relied on by the trial court which held 'that the High Court had rightly permitted recall of the withdrawal order, as when through the mistake misrepresentation/subterfuge by the defendants plaintiffs had withdrawn the suit, the court would not be powerless to set aside the order in exercise of its powers under Section 151 of CPC.'

BACKGROUND:

It was the case of the Respondents that on the basis of the outside court settlement arrived between the Petitioner and Respondent wherein the latter had withdrawn the suit without seeking liberty to claim relief. Pursuant to the terms of the settlement, petitioners had agreed to hand over the vacant physical and peaceful possession of the suit property of the plaintiffs on receipt of an amount of Rs.39.00 lakh.

Subsequently, Respondent filed restoration claiming that the settlement so arrived could not be materialized alleging that despite having committed to the agreement in the outside court settlement, Petitioner had cheated them by not complying with the said agreement. The trial allowed the recall of the impugned withdrawal order which came to be challenged before the High Court.

The Petitioner argued that while withdrawing the case by the contesting respondents against the petitioners herein, no liberty was sought or granted to avail remedy, as such, no such plea can be raised later.

The High Court rejected this argument observing that contention made on behalf of the petitioners herein does not seem to be a correct position of law. It also said that 'It is the fact that the trial court had not passed a decree on the basis of the outside court settlement, as such, the respondents were left with no statutory remedy either to file an appeal or assail the same by any other mode and were rendered without any remedy. Respondents, as such, moved an application for revival of their suit on the failure of the petitioners herein to observe the conditions of the outside court settlement, which was made on the basis for withdrawal of the suit against them.'

The Petitioners also raised the plea of limitation. However, the court observed that in view of the fact that the premises of the respondents being in possession of the petitioners unauthorizedly, the respondents had a recurring cause of action to seek possession of the property in question, therefore, in view of the the contention with regard to limitation, is totally misconceived and is liable to be rejected.

High court finding the petition without any merit dismissed the same with 10,000/ cost to be paid by Petitioner to the answering Respondents condition precedent to defend their suit before the trial court.

Appearance:

A.M.Dar, Sr.Advocate with

Mr. Danish Majid Dar, Advocate for Petitioner

J.H.Reshi, Advocate for Respondent.

Case Title: Mohammad Ishaq Dar & Anr.vs Usman Syed Shah & Ors. 2025

Citation: 2025 LiveLaw (JKL) 25

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