FA/574/2008 5/ 5 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 574 of 2008 ========================================== BHARTIBEN SHANKARBHAI PATEL & 2 Versus UNION OF INDIA ========================================== Appearance : MR ASPI M KAPADIA for Appellant(s) : 1 - 3. MR BIPIN I MEHTA for Defendant(s) : 1, ========================================== CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 23/09/2008 ORAL ORDER
By
way of this appeal, the appellants have challenged the common
judgment and order dated 21st February, 2005 passed by
the Railway Claims Tribunal, Ahmedabad Bench, Ahmedabad below claim
No.O/A/02/00093 and C.A. No.MX 0200064 in Claim No.O/A/0300151
whereby the Tribunal has dismissed both the claim applications with
cost of Rs.10,000/- payable to the respondent Union of India.
The
short facts of the case are as under:-
On account of
accident 12.7.2001, the appellant No.1 lost his husband Shri
Shankarbhai Purshottam Patel as he fell down from the passengers
train travelling from Surat to Udhna. The appellant No.1 is widow
and the appellant nos.2 and 3 are minor children of deceased
Shankarbhai Patel.
The appellant
preferred claim application praying for compensation of Rs.4 lacs
against the Union of India under the provisions of section 125 of
the Railways Act, 1989 for which she engaged advocate Shri Manhar
R.Patel.
During the pendency
of the application, one another Advocate Mr.S.A.Jadhav approached
the appellant no.1 and obtained her signatures on the papers
introducing himself to have been sent by Shri Manhar Patel,
Advocate engaged by the appellant No.1 and he filed another claim
application for the same cause of action.
On 21.2.2005 both
the claim applications were notified for hearing. The learned
Advocate for the Railways Department raised an objection in respect
of the application. However, though Mr.Manhar Patel requested the
Court to grant appearance of Mr.Neville Debu on his behalf and
Mr.Neville Debu, learned Advocate has filed his appearance through
application on the same day and though Mr.Debu, learned Advocate
had explained in detail about the filing of two claim applications
for same cause of action, the Tribunal not only rejected both the
applications but had also made observations that no one appeared on
behalf of appellants with cost of Rs.10,000/-.
Being aggrieved by
the order passed by the Railway Tribunal, the appellants herein
have approached this Court by way of filing this appeal.
Learned Advocate for
the appellants submitted that the Tribunal has erred in dismissing
both the claim applications of the appellants as it has no authority
and jurisdiction to dismiss the first claim application without
deciding it on merits only on the ground that the applicants,-
appellants herein have played fraud upon the Tribunal by seeking
compensation twice. The learned advocate further submitted that the
Tribunal is duty bound to decide the claim applications on merits
and cannot dismiss the application on the ground of exercise of
discretion for grant of relief on the basis of the conduct of the
applicants.
The
learned advocate for the appellants also submitted that appellants
had not played any fraud upon the Tribunal. The appellant no.1 is an
illiterate lady and does not know English. Another Advocate
Mr.Jadhav approached her representing himself to be sent by her
first Advocate Mr.Manhar Patel, and, therefore, she had signed the
documents which were later on misused claiming second claim
application before the Tribunal.
I
have heard learned Advocates for the parties. I have also gone
through the order passed by the Railway Claim Tribunal more
particularly paras:5, 6 and 7 of the order which read as under:
ýS
5. P.O. for the
Respondent Railway submitted that the Applicants have very
conveniently suppressed the material fact about their having
earlier filed Claim Application No.OA 0200093 for the same
deceased, for the same cause of action and by the same Applicants,
as a result, they have played fraud on this Hon’ble Tribunal as
also the Applicants are fraudulently seeking compensation twice,
which law does not permit and thus, the Applicants have to be
dealt with as per law.
6.
We have gone through the said Claim Applications along with the
Application dated 07-12-2002 for condonation of delay and we find
that in both the claim applications, as also in the Application
for condonation of delay, the name of the deceased is ýSShankerbhai
Pursottam Patelýý and that the Applicants too being the same are
seeking compensation twice for the same deceased and for the same
cause of action, which is not permissible under the law, on the
contrary, the Applicants have played fraud on this Tribunal and
moreso, have suppressed material fact about their having filed
earlier Claim Application No.OA 0200093 and thus, the Applicants
have not approached with clean hands.
7.
Since none are present for Applicants and moreso, the Applicants
also chose to be absenting themselves from the present cases, this
Tribunal cannot sit as a silent spectator when such serious
violations of law are crystal clear from the Claim Applications as
also from the said Misc.Application dated 07.12.2002 for
condonation of delay and therefore, this Tribunal has to pass
appropriate directions and/or order, which are as follows:-
O R D E
R
(a) Misc.Application
No.MX 0200064 filed alongwith the Main Claim Application No.OA
0300151 DATED 07-12-2002 as also Claim Application No.OA 2000/93 are
dismissed with costs of Rs.10,000/- (Rupees Ten Thousand) to be paid
by the Applicants to the Respondent Railway.
(b) The Respondent
Railway through General Manager, Western Railway, Mumbai, are
directed to launch criminal prosecution against the Applicants as
also against those persons who have abetted and harboured such
criminal acts by offending the Law. The General Manager, Western
Railway, Mumbai, shall ensure filing of criminal prosecution
immediately.
(c) The Additional
Registrar of this Bench to send copy of this order to the Secretary,
Bar Council of Gujarat at Ahmedabad, Opp.High Court of Gujarat, Sola
Road, Ahmedabad, alongwith xerox copies of Vakalatnama of both the
Advocates in the said two Main Claim Applications, who shall initiate
disciplinary action against the said Advocate i.e. Shri Manhar Patel,
Kotiwad, Post Kaliawadi, Navsari-396427 and Shri S.A. Jadav,
Harikrishna Apartment, K-207, Chhani Jakat Naka Circuit, Vadodara-2,
as per law.
Perusal
of the record shows that the appellant has suppressed material facts
from the Tribunal. It cannot be said that the appellants were not
aware of the proceedings. There is nothing on record to show that
the second application was filed without their knowledge. It is also
required to be noted that the applicants chose to remain absent in
the matter. I am of the opinion that when two applications have been
filed in respect of same cause of action and when the appellants
played fraud with the Court, the Tribunal was justified in passing
the impugned order.
As
regards order of the Railway Tribunal directing General Manager,
Western Railway, Mumbai to initiate criminal prosecution against
the applicants and the persons involved with them in playing role of
fraud with the Tribunal, it will be open for the applicants to move
for revival of their first claim application preferred before the
Railway Tribunal for its consideration on merits. Appeal stands
disposed of with no order as to costs.
(K.S.JHAVERI,
J.)
Amit/-