NAJJAT HUSSAIN And Others vs ALLAH DITTA And Other
This petition for leave to appeal challenged a High Court order refusing to restore a Regular Second Appeal (R.S.A.) that had been previously disposed of following the withdrawal of the suit by one of the appellants. The core legal question was whether the petitioners, who claimed to be interested parties in a representative suit, were entitled to the restoration of an appeal that had been withdrawn and dismissed years prior, particularly in light of an alleged compromise reached between the parties. The Supreme Court upheld the High Court's decision, noting that the petitioners had failed to seek restoration for a considerable period. The Court held that the High Court's order was legal and proper, emphasizing that the petitioners' remedy for enforcing an alleged compromise was not through the restoration of a long-disposed appeal, but rather by instituting a fresh suit and filing the compromise agreement within those proceedings. The principle laid down is that where a suit or appeal has been withdrawn with liberty to file a fresh suit, the appropriate legal recourse for enforcing subsequent compromises is the institution of a new suit rather than seeking to revive stale litigation.
- Can a party seek the restoration of an appeal that was previously withdrawn with permission to file a fresh suit?
- Is the institution of a fresh suit the appropriate legal remedy for enforcing a compromise agreement after the original appeal has been disposed of?
- Does the dismissal of an appeal due to withdrawal preclude parties from later seeking restoration based on an alleged compromise?
ORDER
ABDUL QADEER CHAUDHRY, J.---This petition is directed against the judgment of the High Court dated 26-1-1991.
2. The facts, as narrated by the learned counsel, are that a suit No.722 of 1954 was filed in 1977 by the five plaintiffs. According to the learned counsel, it was a representative suit. The suit was dismissed on 31-10-1963. The first appeal was pending when the appellant Gulsher requested for permission to withdraw the suit with liberty to bring a fresh suit on the same cause of action. The High Court by its order dated 28-9-1967 allowed Gulsher, appellant to withdraw the suit. The learned counsel submitted that since all the persons interested in the case had no knowledge about the withdrawal of the suit as no notice was given to them, they were under the impression that the appeal was pending in the Court. In the meantime, a compromise was reached between all the persons interested in the case. This compromise was placed before the High Court for disposal of the appeal in terms of the compromise. When they came to know that the appeal had already been dismissed in default, an application was moved in the High Court by the petitioners for restoration of R.SA. No.685 of 1964 and its final disposal in terms of the compromise. This application was rejected by the impugned order.
3. Learned counsel for the petitioners submitted that as it was a representative suit, notice should have been given to the petitioners and in the absence of such notice, the appeal could not be disposed of.
4. Admittedly, the earlier appeal had been disposed of in the year 1964. The petitioners did not make any attempt for the restoration of this appeal. The High Court had observed that "the plaintiff was allowed permission to institute a fresh suit or suits and the proper course for him to adopt is to institute such a suit and to have the alleged compromise given effect to".
5. The finding of the High Court is not open to challenge on any legal ground. In case the petitioners want to give effect to a compromise through Court, it could be done by instituting a suit and filing the compromise in it. After the delay of considerable time, the prayer of the petitioners for the restoration of the appeal is uncalled for. The order of the High Court is legal, just and proper.
6. There is no force in this petition. The same is dismissed and leave to appeal is refused.