Ut Of Ladakh And Ors vs Haji Asghar Ali Th. Legal Heirs And Anr on 23 December, 2024

Jammu & Kashmir High Court – Srinagar Bench

Ut Of Ladakh And Ors vs Haji Asghar Ali Th. Legal Heirs And Anr on 23 December, 2024

Author: Moksha Khajuria Kazmi

Bench: Moksha Khajuria Kazmi

                                                                                      Serial No. 1
                                                                                      Regular List
                    IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                                       AT SRINAGAR


                                                        WP(C) No. 3014/2024


                UT of Ladakh and Ors.
                                                                             ..... Appellant/petitioner(s)
                                                      Through: -
                                   Mr. T. M. Shamsi, DSGI with Ms. Sufaya, Advocate


                                                     V/s
                Haji Asghar Ali th. Legal heirs and Anr.
                                                                                      ..... Respondent(s)

Through: –

CORAM:

HON’BLE MS JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE
(ORDER)
23.12.2024

In the instant petition, petitioners have challenged and sought

quashment of the award/order dated 12.11.2021, passed by Lok Adalat

District Kargil in suit File No. 10/N date of institution 15.06.2021 tilted Haji

Asgar Ali Vs. Deputy Commissioner and Ors.

Learned counsel for the petitioners has relied upon the Judgment

passed by the Supreme Court in case Civil Appeal No. 14328/2024 @ SLP

(Civil) No. 27723 of 2024titled Navratan Lal Sharma Vs. Radha Mohan

Sharma & Ors., on the grunds taken in the memo of petition. Paragraph 14

to 17 being relevant are taken note of herein:-

“14. By the impugned order, the High Court dismissed the
application solely on the ground that the order dated
14.07.2022 recording the compromise does not grant liberty to
restore the appeal. We are of the opinion that this is not the
correct approach, as it defeats the statutory right and remedy
available to the appellant under the CPC. This Court in Pushpa
Devi Bhagat (supra), as well as several other cases, has held
that only the court that entertains the petition of compromise
can determine its legality, at the time of recording the
compromise or when it is questioned by way of a recall

Mohammad Yaseen Dar
I attest to the accuracy and
authenticity of this
document
application. No other remedy is available to the party who is
aggrieved by the compromise decree as an appeal and fresh suit
are not maintainable under the CPC.

15. In view of this legal position, the High Court was not correct
in curtailing the statutory remedy available to the appellant in
the first place.11 In fact, when there is a statutory remedy
available to a litigant, there is no question of a court granting
liberty to avail of such remedy as it remains open to the party to
work out his remedies in accordance with law. Therefore, there
was no occasion for the court to deny liberty to file for
restoration by its order dated 14.07.2022 and the consequent
dismissal of the recall application by the impugned order on this
ground alone does not arise. Further, as a matter of public
policy, courts must not curtail statutorily provisioned remedial
mechanisms available to parties.

16. It is also relevant that para 4 of the compromise deed dated
18.05.2022 recognises the appellant’s right to file for
restoration of appeal in case of non-compliance. Further, para
7 stipulates that the compromise will be considered void in case
of non-payment. Reading these clauses together, it is clear that
the compromise deed itself recognises the parties’ right to
approach the court to question its validity in certain
circumstances. These clauses are in line with the public policy
consideration of access to justice reflected in Section 28 of the
Contract Act that stipulates that agreements which restrain a
party from enforcing his rights through legal remedies are void.

17. In this view of the matter, we allow the appeal, set aside the
impugned order dated 19.10.2023, and remand the matter to the
High Court to decide the application for recall on its own
merits. Needless to say that we have not expressed any opinion
on the merits of the matter.”

In view of the Judgment (supra), the instant petition is disposed of

with a direction to the petitioners to move an application before the

concerned Court for recalling of the Lok Adalat award/order dated

12.11.2021. Delay if any caused in filing such application shall not come in

the way of petitioners and shall be deemed to have been condoned.

Disposed of.

(MOKSHA KHAJURIA KAZMI)
JUDGE
SRINAGAR
23.12.2024
“Mohammad Yasin Dar”

Mohammad Yaseen Dar
I attest to the accuracy and
authenticity of this
document