JUDGMENT
Kamlesh Sharma, J.
1. These four appeals (F.A.O. Nos. 464, 465, 466 and 467 of 2000) are preferred by United India Insurance Co. Ltd., which was respondent No. 2 in the claim petitions. It is aggrieved by the orders dated 24.8.2000, impugned in each appeal and which are identical, whereby its applications under Order 9, Rule 13 read with Section 151, Civil Procedure Code for setting aside the awards dated 31.3.1998 passed ex parte against it by the Motor Accidents Claims Tribunal (II), Shimla (hereinafter referred to as ‘the Tribunal’), were dismissed. These awards were passed in Claim Petition Nos. 4-S/2 of 1995, 5-S/2 of 1995, 6-S/2 of 1995 and 7-S/2 of 1995 decided on 31.3.1998. All these claim petitions arise out of the same accident of truck No. HP 09-0807 belonging to Theog Tehsil Co-operative M&C Union Ltd., Theog, District Shimla, which was respondent No. 1 in the claim petitions and insured by the appellant insurance company, respondent No. 2, in the claim petitions.
2. The applications under Order 9, Rule 13, Civil Procedure Code, were filed on behalf of the appellant insurance company on 8.6.1998. These were supported by the affidavit of Mr. Deepak Bhasin, learned Counsel, who was appearing for the appellant insurance company in the claim petitions. It is stated in the applications that the appellant insurance company was effectively contesting the claim petitions up to 18.4.97 and thereafter it was proceeded ex parte, as its learned Counsel Mr. Deepak Bhasin failed to put in appearance for the reason that due to bona fide mistake he did not note down further date of hearing. On 2.6.1998, the Assistant Divisional Manager of the appellant insurance company contacted Mr. Bhasin, learned Counsel to inform him that in all the four claim petitions, a clerk from D.T.O., Patiala, be summoned to prove the driving licence of the driver who was driving the vehicle in question at the time of accident. Mr. Bhasin, learned Counsel, thereafter searched his records and came to know that the claim petitions stood decided on 31.3.1998 ex parte against the appellant insurance company. It is further alleged in the applications that sufficient cause is made out from these facts and circumstances to prove that the absence of the appellant insurance company or its learned Counsel was neither wilful nor intentional.
3. Reply to the application was filed on behalf of the claimants through their learned Counsel Mr. D.N. Ronta, which is not supported by any affidavit. Besides taking preliminary objections that the application under Order 9, Rule 13, Civil Procedure Code is not maintainable as the provisions of Order 9, Rule 13, Civil Procedure Code do not apply and that the application is hopelessly time-barred, the application is resisted on merits by stating that the absence of the appellant insurance company or its learned Counsel was deliberate and because of their negligence, as they did not care to know about the further progress of the claim petitions for more than one year. It is also stated in the reply that if the ex parte awards against the appellant insurance company are set aside, it would not only delay the final decision in the claim petitions, but also prejudice the case of the claimants.
4. It seems from the record that no reply to the applications was filed on behalf of the Theog Co-operative M&C Union Ltd., Theog, though it was represented by a learned Counsel.
5. After consolidating all the four applications, the following issues were framed:
(1) Whether there are sufficient grounds for setting aside the ex parte award dated 31.3.1998 in Claim Petition Nos. 4-S/2, 5-S/2, 6-S/2 and 7-S/2 of 1995?
OPA
(2) Whether the application is not maintainable?
OPR
(3) Relief.
6. Mr. Deepak Bhasin, learned Counsel appeared as AW 1 on behalf of the appellant insurance company and produced his case diary for the dates 18.4.97, 20.5.1997 and 26.5.97, Exhs. AW 1/A to AW 1/C.
7. On the other hand, no evidence was produced on behalf of the claimants. Mr. Deepak Bhasin, learned Counsel has reiterated the averments made in the application. He has further stated that he had also applied for the review of the order passed in the application under Section 140 of the Motor Vehicles Act (hereinafter called ‘the Act’) in which next dates were 18.4.1997, 20.5.1997 and 26.5.1997. According to him, he had not instructed any person or advocate to appear on behalf of the insurance company after 18.4.1997 and if some counsel had appeared, he might have done in good faith, but he failed to give any intimation of the next dates.
8. In cross-examination conducted by the learned Counsel for the claimants, he has admitted that Sandeep Attri, Advocate, did appear on his behalf on 28.7.1997. He has categorically denied having knowledge of the dates fixed on 28.7.1997 to 28.10.97. He has admitted that he did not inquire about the date fixed in the claim petitions when he appeared in the review petition on 20.5.1997 which was decided on 26,5.97. As per Mr. Bhasin, it slipped from his mind to confirm the next date fixed in the claim petition after 26.5.1997 and after the receipt of telephonic call from the appellant insurance company, he made inquiry from the Tribunal on 3.6.1998 and came to know of the ex parte award and thereafter he filed applications on 8.6.98.
9. On the appreciation of the evidence on record, the Tribunal came to the conclusion that the application is not competent, as neither it has been filed by the appellant insurance company, nor any of its officer/official has appeared in the witness-box in support thereof. The Tribunal has taken the view that the counsel cannot take the place of a party in moving an application and filing an affidavit and thereafter appearing as witness. It is held by the Tribunal that in the facts and circumstances on record, it is doubtful whether the appellant insurance company is really in the know of the award passed ex parte against it. Ultimately, the applications have been dismissed by the Tribunal holding that no sufficient cause is made out to set aside the award passed ex parte against the appellant insurance company.
10. We have heard the learned Counsel for parties and gone through the record.
11. We find substance in the submission made by the learned Counsel for the appellant that the application filed by the learned Counsel appearing for the appellant insurance company under his signatures and duly supported by his personal affidavit, was maintainable as provided under Order 3, Rule 1, Civil Procedure Code. Order 3, Rule 1 is as under:
1. Appearance, etc., may be in person, by recognized agent or by pleader.- Any appearance, application or act in or to any court, required or authorized by law to be made or done by a party in such court, may except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader, appearing, applying or acting, as the case may be, on his behalf:
Provided that any such appearance shall, if the court so directs, be made by the party in person.
12. The perusal of this provision leaves no doubt that a counsel appearing for the party can move an application on its behalf and if the averments made in the application are within his personal knowledge, he may also file affidavit in support of the application. Therefore, the findings of the Tribunal that the applications filed under the signatures of the learned Counsel and supported by his personal affidavit are not competent, are not sustainable in law and are set aside.
13. Before dealing with the appeal on merits, we would like to decide the objection to the maintainability of this appeal, as raised by the learned Counsel for the claimants.
14. It is urged by the learned Counsel for the claimants that in the absence of any provision in the Act that appeal lies against the order dismissing the application under Order 9, Rule 13, Civil Procedure Code and non-application of Section 104 and Order 43, Civil Procedure Code as per Rule 20 of the Motor Accidents Claims Tribunal Rules, 1960 (hereinafter called ‘the Rules’), these appeals are not maintainable against the impugned orders. In support of his submission, the learned Counsel has relied upon the judgment of Allahabad High Court in Om Prakash v. Rukmini Devi 1983 ACJ 300 (Allahabad).
15. On the other hand, the learned Counsel for the appellant insurance company has argued that in view of application of Order 9, Rule 13, Civil Procedure Code as per Rule 20 of the Rules, application of Section 104, Civil Procedure Code and Order 43, Rule 1 (d) is implicit; otherwise the party suffering the orders of rejection of the application under Order 9, Rule 13, Civil Procedure Code, will be left high and dry as after availing the remedy under Order 9, Rule 13, Civil Procedure Code, it is debarred from filing the appeal under Section 173 of the Act in view of the explanation to Order 9, Rule 13, Civil Procedure Code.
16. After giving our best consideration to the respective submissions of the learned Counsel for the parties, we find no force in the objection of the learned Counsel for the claimants. It is correct that appeal is not specifically provided in the Act against the order dismissing the application under Order 9, Rule 13, Civil Procedure Code for setting aside the ex parte award passed by the Tribunal and Rule 20 of the Rules specifically provides for Order 9, Civil Procedure Code and not Order 43, Rule 1 (d), Civil Procedure Code, but once Order 9 is made applicable which includes Order 9, Rule 13, Civil Procedure Code, it is implied that the order passed in the application under Order 9, Rule 13 will be subject to further appeal or revision as provided under the Civil Procedure Code. Otherwise the very purpose of applying Order 9, Rule 13, Civil Procedure Code will be defeated. If order rejecting the application under Order 9, Rule 13, Civil Procedure Code is held not appealable in view of Order 43, Rule 1 (d) not specifically made applicable under Rule 20 of the Rules, the consequences will be absurd as the party suffering from this order will be left without any remedy as it cannot assail ex parte award by filing appeal under Section 173 of the Act. In Rani Choudhury v. Lt. Col. Surjit Choudhury AIR 1982 SC 1397, the learned Judges have held in para 3:
By enacting the Explanation, Parliament left it open to the defendant to apply under Rule 13 of Order 9 for setting aside an ex parte decree only if the defendant had opted not to appeal against the ex parte decree or, in the case where he had preferred an appeal, the appeal had been withdrawn by him. The withdrawal of the appeal was tantamount to effacing it. It obliged the defendant to decide whether he would prefer an adjudication by the appellate court on the merits of the decree or have the decree set aside by the trial court under Rule 13 of Order 9. The legislative attempt incorporated in the Explanation was to discourage a two-pronged attack on the decree and to confine the defendant to a single course of action. If he did not withdraw the appeal filed by him, but allowed the appeal to be disposed of on any other ground, he was denied the right to apply under Rule 13 of Order 9, the disposal of the appeal on any ground whatever, apart from its withdrawal, constituted sufficient reason for bringing the ban into operation.
17. Following the law laid down by the Apex Court, a Division Bench of Madhya Pradesh High Court in Sumera v. Madan-lal AIR 1989 MP 224, has held that after exhausting the remedy to challenge the ex parte decree under Order 9, Rule 13, Civil Procedure Code, the petition challenging the order passed in appeal, was not maintainable.
18. Therefore, if the appellant insurance company cannot assail the awards passed ex parte against it by filing appeal under Section 173 of the Act, it cannot be debarred from assailing the order dismissing the application under Order 9, Rule 13, Civil Procedure Code under Order 43, Rule 1 (d), Civil Procedure Code. We find ourselves unable to agree with the ratio of judgment of Allahabad High Court in Om Prakash ‘s case 1983 ACJ 300 (Allahabad), as there was no provision before the learned Judges like Rule 20 of the Rules, which makes Order 9 specifically applicable.
19. Another preliminary objection to the appeal raised by the learned Counsel for the claimants, is that since the application under Order 9, Rule 13, Civil Procedure Code was hopelessly time-barred and not accompanied by an application under Section 5 of the Limitation Act, it was required to be dismissed on this ground alone. Referring to Article 123 of the Schedule of the Limitation Act, the learned Counsel has urged that limitation of 30 days for filing the application for setting aside the decree passed ex parte starts from the date of decree and not from the date of knowledge of the decree as in the case where the summons or notice was not duly served on the party against whom the ex parte decree is passed. So far the case in hand is concerned, the appellant insurance company had absented in the midst of the trial of the claim petitions.
20. It is further argued by the learned Counsel that even if there was no issue framed on the point of limitation despite the objection raised in the reply to the application, it was obligatory on the part of the Tribunal to decide whether the application was within limitation, if not, whether the application under Section 5 of the Limitation Act for condoning the delay was required to be filed and sufficient cause existed for condoning the same, which has not been done in the present case.
21. On the other hand, the learned Counsel for the appellant insurance company has submitted that though the objection of limitation was taken in the reply to the application, it was not pressed at the time of framing issue. Had it been pressed, the appellant insurance company would have moved an application under Section 5 of the Limitation Act. According to the learned Counsel, non-filing of the application under Section 5 of the Limitation Act has not, in any manner, prejudiced the stand of the claimants, as the sufficient cause shown for the absence of the appellant insurance company or its learned Counsel in the application under Order 9, Rule 13, Civil Procedure Code would have been the sufficient cause for condoning the delay in filing the said application.
22. After considering the respective contentions of the learned Counsel for the parties, we are of the view that the learned Counsel for the claimants is right in urging that in the present case limitation for filing the application under Order 9, Rule 13, Civil Procedure Code started from the date of awards passed ex parte against the appellant insurance company and not from the date of knowledge of the said awards and also that the application under Order 9, Rule 13, Civil Procedure Code was time-barred and the application under Section 5 of the Limitation Act for condoning the delay was required to be filed. We also hold that the question of limitation in the facts of this case was a pure question of law and the Tribunal having failed to address itself to this question, has committed jurisdictional error. We have no doubt that it was obligatory on the part of the Tribunal to have framed an issue on the point of limitation and give an opportunity to the appellant insurance company to show that it has sufficient cause for getting the delay condoned by filing an application under Section 5 of the Limitation Act.
23. Since the Tribunal has failed to do the needful, the proper course for us would have been to remand the case to the Tribunal for deciding the point of limitation after giving opportunity to the appellant insurance company to show the sufficient cause in view of the guidelines laid down by the Supreme Court in almost similar circumstances in Saithalavi v. Kerala State Electricity Board (1998) 9 SCC 557. It is held in this judgment:
… The High Court rightly held that the said application was beyond time of three years permissible under law as held by this Court in the case of Kerala State Electricity Board v. T.P. Kun-haliumma (1976) 4 SCC 634. However, learned Counsel for the appellant vehemently contended that even when such an objection was raised in the grounds of objection before the trial court by the respondent, no such objection appeared to have been canvassed ultimately nor even such an issue was struck by the trial court. Be that as it may, the question of limitation in the facts of this case being a pure question of law would assume the character of an issue of jurisdiction. However, learned Counsel for the appellant was right when he contended that even if three years period is considered as the period of limitation for entertaining application under Section 16 (3) of the Act, the appellant should have been given an opportunity for condonation of delay by making an application to that effect. Learned counsel for the respondent contended that no such application was ever filed before the trial court. However, having considered rival contentions of the parties, the appellant deserves to be given an opportunity and to demonstrate whether he was having sufficient cause for getting the delay condoned for filing application under Section 16 (3) of the Act before the District Court. This opportunity has to be given for the simple reason that the issue of limitation was not placed before the trial court for consideration at all. Hence, no occasion arose for the appellant to pray for condonation of delay before the District Court…
24. But in the peculiar facts and circumstances of this case in which the point of limitation is involved in respect of applications under Order 9, Rule 13, Civil Procedure Code wherein sufficient cause has been allegedly shown for filing these applications, which would have been the sufficient cause for condoning the delay in filing the said application and also keeping in view the fact that the remand would further delay the finality of the award by the Tribunal, we are not remanding the matter and proceed to consider the point of limitation ourselves on the alleged sufficient cause shown by the appellant insurance company.
25. The admitted facts and circumstances on record are that in all the claim petitions Mr. Bhasin, learned Counsel for the appellant insurance company continued appearing either himself or through some other lawyer up to 18.4.1997 when proxy lawyer Mr. Rajiv Sharma appeared for the appellant insurance company and thereafter the claim petitions were listed on 28.7.1997 when none appeared for the appellant insurance company except in the claim petition out of which F.A.O. No. 464 of 2000 has arisen in which one Mr. Sandeep Attri, Advocate, appeared vice Mr. Deepak Bhasin, learned Counsel for the appellant insurance company. As per version of Mr. Bhasin, learned Counsel for the insurance company, he did not note down the next date fixed in the claim petitions after 18.4.97 and it had slipped from his mind that he was representing the appellant insurance company in these claim petitions. According to him, if Mr. Sandeep Attri had appeared on his behalf in one of the claim petitions, he had done it bona fide and had not told him the next date.
26. These admitted facts on record instead of constituting sufficient cause, prove beyond a shadow of doubt that Mr. Bhasin, learned Counsel for the appellant insurance company was negligent and failed to render legal assistance to the appellant insurance company. We find from the record that he had filed review petitions against the orders dated 8.5.1996 awarding the amount of no fault liability to the claimants and had conducted those review petitions even after 18.4.97 on 20th, 26th and 28th May, 1997, which was enough to remind him of the main claim petitions and had he been little careful, he would have inquired about the next date fixed therein. But the question arises should the appellant insurance company suffer for the negligence of its learned Counsel? We cannot lose sight of the fact that the appellant insurance company is a public undertaking and if it is not given fair trial in the claim petitions, the public interest will suffer.
27. By now it is well settled that if a party engages a lawyer who defaults, that party should not suffer for the misdemeanour and inaction of its counsel. In almost similar circumstances, the learned Judges of the Apex Court in Malkiat Singh v. Joginder Singh AIR 1998 SC 258, have set aside the ex parte decree and remanded the case for fresh trial holding that if the counsel engaged by a party pleads no instructions and court does not issue any notice to that party, who was admittedly not present on the date when its counsel reported no instructions in the court and on coming to know of the ex parte proceedings that party files an application for setting aside the ex parte decree under Order 9, Rule 13, Civil Procedure Code, the said application deserves to be allowed on the ground that the said party was neither careless nor negligent in defending the suit. In this judgment, the learned Judges have approved the observations made in para 4 of their earlier judgment in Tahil Ram Issardas Sadarangani v. Ram-chand Issardas Sadarangani (1993) 3 SCC (Supp) 256.
28. Therefore, we have no hesitation to hold that for the fault of its lawyer Mr. Deepak Bhasin, the appellant insurance company should not suffer. In the result, these appeals are allowed and the orders dated 24.8.2000 impugned in each appeal passed by the Motor Accidents Claims Tribunal (II), Shimla, are set aside subject to payment of costs of Rs. 2,000 by the appellant insurance company in each claim petition. The amount of cost will be deposited by the appellant insurance company within a period of two weeks with the Tribunal, which will be paid to the claimants on the first date of hearing before it. However, the appellant insurance company is at liberty to realise the amount of cost from Mr. Deepak Bhasin, Advocate. For putting costs we are guided by the ratio of the judgment of Supreme Court in State of U.P. v. Sunder Singh JT 1999 (10) SC 507, wherein on the admitted lapse committed by the Additional Government Advocate in applying for certified copy of the judgment late, costs of Rs. 5,000 was imposed.
29. As a consequence of setting aside the impugned orders dated 24.8.2000, the applications under Order 9, Rule 13, Civil Procedure Code are allowed and the awards dated 31.3.1998 passed ex parte against the appellant insurance company are set aside. The matter is remanded to the Tribunal with direction to restore the claim petitions (MAC Nos. 4-S/2 to 7-S/2 of 1995) to their original number and thereafter decide them in accordance with law by permitting the appellant insurance company to join the proceedings.