Mahendar Kumar Goyal, J.:— This application bearing I.A. No. 1/2020 has been filed by the appellant seeking liberty to withdraw the civil misc. appeal in view of settlement having been arrived at between the parties vide memorandum of settlement dated 27.01.2020 (Annexure P/2) with a liberty to revive the appeal if the terms of memorandum of settlement are not acted upon by the respondent in its true letter and spirit.
2. Per contra, learned counsel for the respondent admitting that the dispute has been amicably settled between the parties through memorandum of settlement dated 27.01.2020, has objection against granting liberty to the appellant to get revived this misc. appeal. Relying upon Order 23 Rule 3 C.P.C. and judgment of the Hon'ble Apex Court in Sarguja Transport Service v. State Transport Appellate Tribunal, Gwalior, (1987) 1 SCC 5 : AIR 1987 SC 88, he submitted that the appellant can be given a liberty to file fresh appeal instead of granting him liberty to get revived the present appeal.
3. Heard learned counsels for the parties and perused the record.
4. It is not disputed by learned counsel for the respondent that the parties have arrived at settlement through the memorandum of settlement dated 27.01.2020, which envisages through Clause-11, the appellant to withdraw the appeal after signing it. Neither, the provisions of Order 23 Rule 3, nor, the judgment of the Hon'ble Apex Court in Sarguja Transport (supra), restricts power of the Court to permit the appellant to revive the present appeal in case, terms of the memorandum of settlement are not honored by the respondent in letter and spirit.
5. The contention of the learned counsel for the respondent that it has already complied with terms and conditions of the memorandum of settlement, disputed by the appellant, neither cannot be countenanced in absence of any reply to the application nor, is relevant for disposal of the application.
6. In view thereof, the objection raised by the learned counsel for the respondent is not sustainable. The application no. 1/2020 is allowed. The civil misc. appeal is dismissed as withdrawn with liberty to the appellant to get it revived in case the respondent fails to honour its terms and conditions in letter and spirit. Rest all other application Nos. 1/2019, 2/2019, 3/2019 as well as stay application stand disposed of accordingly.
7. The registry is directed to send back the record to the learned trial Court.