Court No. - 21 Case :- WRIT - C No. - 68975 of 2009 Petitioner :- State Of U.P. And Another Respondent :- K.K. Tripathi And Another Petitioner Counsel :- V.C. Dixit Respondent Counsel :- Anand Kumar Singh Hon'ble V.K. Shukla,J.
Present writ petition has been filed by State of U.P. questioning
the validity of the order dated 3.11.2009 passed by the
Additional District Judge, Court No. 10, Kanpur Nagar in Misc.
Case No. 2/74/08 wherein delay condonation application has
been rejected. Further prayer has been made for issuance of writ
in the nature of mandamus to recall exparte judgement and
award dated 1.4.1995 and for deciding the claim petition on
merits.
Brief background of the case is that respondent no.1 has filed
Claim Petition under Section 166 of Motor Vehicle Act, 1988
claiming compensation of Rs. 2,75,000/- on account of injuries
sustained by him in a motor accident which took place on
3.9.1989. Claim petition was registered as Motor Accident Case
No. 67 of 1990 and therein opposite parties-petitioner appeared
and file written statement. Said claim petition was initially
dismissed in default on 27.9.1994. Petitioner submits that
thereafter, they have no knowledge of notice of ex parte
judgement dated 1.4.1995. On 4.1.2004 they acquired
knowledge and then application was moved without any further
delay on 28.2.2004 for recalling of the ex party judgment dated
1.4.1995, same was registered as Misc. Case No. 74 of 2004. In
the said proceedings steps were not at all undertaken in spite of
direction of Claim Tribunal and it was dismissed on 2.11.2007.
Thereafter, an application was moved on 10.1.2008 and said
application has been dismissed on 3.11.2009. At this juncture
present writ petition has been filed.
Sri V.C. Dixit, Advocate, learned counsel for the petitioner
contended with vehemence that valid and cogent reasons were
there on account of which liberal view ought to have been taken
in the matter and as such order which has been passed, same is
liable to be set aside.
Countering the said submission, Sri S.N. Singh, Advocate
appearing with Sri A.K. Singh, Advocate on the other hand
contended that in the fact of the present case and looking into
callous attitude of the petitioner, rightful view has been taken in
the matter and the fact of the matter is that in execution
proceedings, petitioners had entered appearance and had been
participating, as such liberal view is not at all liable to be taken,
as such writ petition deserves to be dismissed.
After respective arguments have been advanced, undisputed
factual position which is emerging in the present case is that
claim petition has been filed way back in the year 3.9.1989 and
more then 20 years period have already elapsed in the said
proceeding. Petitioners had entered appearance by filing written
statement. It is reflected from the record that said proceedings
were dismissed for want of prosecution on 27.9.1994. Petitioners
have proceeded to mention that they have no knowledge or
information. Fact of the matter is that on 27.9.1994 when the
claim petition was dismissed in default, on the same day in the
presence of Pairokar of the petitioners, said order in question
was recalled as it has been passed due to inadvertence. On
27.9.1994 orders were passed to proceed exparte and then on
1.2.1995 statement was got recorded and on 1.4.1995 claim
petition was allowed. Execution of the said award had been
undertaken and same had been on going, and in the said
proceedings, petitioners had entered appearance and had been
participating. Thereafter, application was moved on 28.2.2004
for recalling of the said exparte judgment. In the said
proceedings, notices were issued and in spite of specific order
being there, no steps whatsoever had been undertaken and then it
was rejected on 3.11.2007. Thereafter, on 10.1.2008 an
application was moved supported by section 5 application for
setting aside of the said order. Additional District Judge has
taken into account the conduct of the petitioners and the way and
manner in which proceedings have been conducted and
thereafter has found that there was no sufficient cause for
recalling of the said order, and has consequently proceeded to
reject the delay condonation application.
In the fact of the case, it cannot be said that view which have
been taken by the court of the Additional District Judge Court
No. 10 suffers from any infirmity, rather looking into the
conduct of the petitioners and the way and manner in which
proceedings have been undertaken by the petitioners, this court
refuses to exercise its authority of judicial review.
Consequently, writ petition is dismissed.
No order as to cost.
Order Date :- 4.1.2010
T.S.