IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.: 153 of 1999 Date of decision : 29.12.2009. Roshan Lal and others …Appellants. Versus Sunder Singh and others …Respondents Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1 No. ------------------------------------------------------------------------------------------ For the Appellants: Mr. R.K.Gautam, Advocate. For the respondents Mr. K.D.Sood, Advocate. No. 1,2, 3(a) to 3(c), 4 and 5: For the respondents No. Mr. Inder Sharma vice Mr.J.R.Poswal, 3(d) to 3(f) Advocate. Deepak Gupta, J.(Oral) This second appeal is directed against the order dated 5th May, 1999 whereby Civil Appeal No.90 of 1997 has been disposed of as having been compromised and decree has been ordered to be prepared in terms of the compromise Ext.CA. The brief facts necessary for disposal of the case are that S/Shri Sunder Singh, Pradeep and Bakshi Ram, sons of Sant Ram filed a suit alleging that their father Sant Ram in connivance with Roshan Lal another son of Sant Ram was trying to raise construction on that portion of the property which adjoined the national high way. It was alleged that the rights of the plaintiffs as well as the proforma defendants i.e. Parshotam Chand, Suneel 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 2 Kumar, Mathura Devi and Oraku Devi were being adversely affected. According to the plaintiffs, the property in question was co-parcenary property in which all the parties had a share. This suit was dismissed by the learned Sub Judge Ist Class, Bilaspur on 30th August, 1997. The learned Sub Judge held that the suit land is not co-parcenary property. Thereafter, an appeal was filed by Sunder Singh and Pradeep only. It would be pertinent to mention that Sant Ram had two wives, Mathura Devi and Oraku Devi. From Mathura Devi three sons were born, namely Sunder Singh, Bakshi Ram and Pardeep, the original plaintiffs. Roshan Lal, Suneel Kumar and Parshotam Chand are the sons of Sant Ram through his wife Oraku Devi. The appeal was taken up on 7th April, 1999. At the request of Shri R.L.Thakur, learned counsel for the respondents it was adjourned for hearing to 28th June, 1999. On 5th May, 1999 the appeal was taken up when the following order was passed:- “An application for taking up the case today has been filed by the appellant stating that the entire dispute has been settled by the parties. Shri Sant Ram respondent has stated that he has settled the entire dispute with his sons and he has given 3 Bighas of land to Shri Pradeep Chand out of Khasra No.238/158/1, 1 Bigha each to Shri Sunder Singh and Shri Bakshi Ram, appellant No.1 and respondent No.5 out of Khasra No.238/158/2 and 238/158/3. He has further stated that necessary possession has already been delivered to the appellants and respondent No.5 as per compromise Ext.CA, copy of Tatima 3 Ext.CB and copy of Jamabandi Ext. CC placed on record. The appellants and respondent No.5 are also present and they have also admitted the statement made by their father Shri Sant Ram. The defendants have given up their claim against Roshan Lal, respondent No.2. In view of the statements of the parties, the present appeal is allowed and the judgement and decree passed by the learned trial Court is set-aside and the suit of the plaintiffs is decreed as per terms of the compromise. Compromise Ext.CA, Tatima Ext.CB and Jamabandi Ext.CC shall form part of the decree. Decree sheet be prepared accordingly. The record of the learned trial Court alongwith copy of this order be sent back forthwith. The file of this Court be consigned to record room after due completion.” This order is under Challenge in this Court. Shri R.L.Thakur, learned counsel for the respondents, has filed an affidavit that he was not present in the Court of the learned District Judge on the date when this order was passed and according to him his presence appears to have been marked by mistake. Normally, this Court would be loathe to hold that something which is recorded in the order sheet is not correct. But after going through the record, I find that there appears to be substance in the allegation of the appellants here-in that the matter was compromised in their absence and in the absence of their counsel. On 5th May, 1999 an application was filed by one of the appellants Sunder Singh in which it is clearly mentioned that the 4 appeal is fixed for 28th June, 1999. According to the appellants they had amicably settled the dispute in a family arrangement and as such do not want to proceed further with the appeal. This application was not signed by Shri R.L.Thakur, Advocate. They prayed that the appeal be taken up on the same date itself. On that date itself the statement of respondent No.1 Sant Ram and joint statement of Sunder Singh, Pradeep Chand and Bakshi Ram was recorded. This statement is also countersigned by Shri R.L.Sharma, counsel for the appellants before the learned lower appellate Court. No signatures of Shri R.L.Thakur, Advocate, are appended on any statement. The statement of Shri R.L.Thakur, Advocate, was also not recorded. In case the compromise Ext.CA is seen it gives an impression as if there are only four parties in the proceedings. Surprisingly, there is no endorsement of the date of filing or office report on the application dated 5.5.1999. There is no endorsement on this application that its copy had been given to Shri R.L.Thakur, learned counsel for the respondents before the lower appellate Court. It appears that the learned Court below in a hot haste manner, just with the intention of disposing the appeal, disposed of the same in terms of the compromise without realising that there were other parties who were not represented before him. Even, according to the case of the appellants before the learned lower appellate Court the property in question was co- parcenary property and each of the parties had a share in the said property. For any compromise to be meaningful and effective it was necessary that it should have been signed by all the parties 5 who had a share in the property. This admittedly has not been done. In a case where parties seek preponement, the Court should ensure that the other side is duly represented. Just marking the presence of a counsel is not sufficient. Statements should have been record on behalf of the persons who were not present to show that they were agreeable to the compromise. This having not been done. I am of the considered view that the compromise could not have been acted upon in the manner in which it has been done. In view of the above discussion, I have no other option but to set-aside the judgement and decree of the learned lower Appellate Court and to remand the case back to the aforesaid Court to decide the same afresh. It is made clear that this Court has not expressed any opinion on the merits of the case or the rights of the parties in the dispute in question. Whether there is a valid compromise existing between the parties and whether the compromise already filed is binding on the parties, who have signed the compromise or made statements to this effect before the Court below, are questions which the learned Appellate Court must decide. Since the litigation in the present case started in the year 1995, the learned lower Appellate Court is directed to ensure that the appeal is disposed of as early as possible and in any event not later than 31st July, 2010. The Registry is directed to ensure that the records of the case are being sent back to the learned lower Appellate Court so as to reach the said Court well before the date 6 fixed for appearance. Parties through their counsel are directed to appear before the learned lower Appellate Court on 22nd February, 2010. 29th December, 2009 ( Deepak Gupta ) ™ Judge.