Satya Narain vs M/S Gulab Chand Bhanwar Lal on 2 September, 2008

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        S.B.CIVIL FIRST APPEAL NO.36/1988
  (Satya Narain Vs. M/s Gulab Chand Bhanwarlal & ors.)

Date of Order ::    2nd September 2008

      HON'BLE MR. JUSTICE DINESH MAHESHWARI

Mr.Ramit Mehta for the appellant
                        ....


      Learned counsel for the defendant-appellant submits

that though the appellant has extended verbal information that

compromise has been arrived at between the parties but,

despite request, has not sent a written communication in that

regard.

      Having examined the record of the case, this Court is

satisfied that the instant appeal is not required to be kept

pending any further and deserves to be dismissed.

      This appeal has been preferred against the judgment

and decree dated 20.01.1988 as passed by the Additional

District Judge No.1, Udaipur in Civil Suit No.210/1983

whereby the suit as filed by the respondent No.1 firm with

respondents Nos.2 to 4 as its partners was decreed against

the defendants allowing a sum of Rs.17,953/- together with

interest on the principal amount at the rate of 1% per month

from the date of filing of the suit.

      This appeal, preferred by the defendant No.4 in the suit,

was admitted for consideration on 20.05.1988. Though notices
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in the stay application were also ordered to be issued but then,

on 11.05.1993, after hearing learned counsel for the parties,

this Court rejected the stay application with the observations

that if the amount under the decree had not been recovered,

the appellant would be free to deposit the same in the Court

and that could be paid to the decree-holders on their

furnishing solvent security for restitution, in case so required.

        It appears that the matter came up for hearing before

the Court on 21.03.2007 and was adjourned for four weeks;

and then, was adjourned              for another two weeks on

01.05.2007. However, on 17.05.2007, this Court noticed that

the counsel earlier representing the respondents had since

been elevated to the Bench and, none else being present for

the respondents, fresh notices were ordered to be issued to

them.

        The reports were received on the notices so issued in

the manner that the respondents Nos.2 to 7 have expired

whereas notices meant for respondent No.1 were returned

unserved with the noting by the person to whom notices were

offered that the parties had already compromised the matter.

        The matter was thereafter processed in the office for the

reason that     fresh notices were not filed in relation to the

respondent No.1 and steps were not taken in relation to the

respondents Nos.2 to 7.        In the said state of record, on
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21.08.2008 this Court found that the appeal had already

abated qua the respondents Nos.2 to 7. As the counsel for

the appellant prayed for time to complete his instructions, the

matter was adjourned in the interest of justice but, looking to

the noting as made on the notices sent to the respondent

No.1, with last opportunity.

      Fresh notices have not been filed in relation to the

respondent No.1 yet and, as noticed at the outset, counsel for

the appellant states having received oral communication that

the matter has since been compromised between the parties.

      For the appellant having failed to take steps in relation

to the respondents Nos.2 to 7, the appeal has already abated

qua them and then, for the appellant having failed to take

steps for service of the respondent No.1, this appeal is

required to be dismissed against the respondent No.1 also

and is, therefore, required to be dismissed in toto.

      Even otherwise, on merits too, there does not appear

any ground for the appellant to urge in this appeal.       The

learned Trial Court, with reference to the evidence on record,

has found the commercial dealings between the parties and

has found that ultimately an amount of Rs.17,430.18 remained

due in the defendants.         This appeal has essentially been

preferred with the submissions that the appellant-defendant

No.4 was unnecessarily entangled in the present case and
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     he was not the partner of the defendant No.1 firm. Issue No.6

     was framed in that regard but the learned Trial Court has

     noticed that no any evidence was adduced by the defendants

     and also found from the document Ex.4 that the appellant had

     been incharge of the affairs of the defendant No.1 firm.

           Perusal of the judgment under appeal makes out that no

     evidence was at all led on behalf of the defendants including

     the appellant.

           Taking into comprehension all the facts of the case and

     the surrounding circumstances, this Court is clearly of opinion

     that there is no justification to continue with this appeal any

     further that remains bereft of merit; and so also for the reason

     that the parties appear to have entered into a settlement; and

     further for the reason that the appellant has failed to take

     requisite steps.

           For all the reasons aforesaid, this appeal is dismissed.



                                    (DINESH MAHESHWARI),J.

MK