In the High Court of Punjab & Haryana at Chandigarh
F.A.O. No. 2289 of 2007
Date of decision: July 31, 2008
Brij Lal and another
... Appellants
versus
Ishwar Singh alias Leela Ram
... Respondent
Coram: Hon'ble Mr. Justice A.N. Jindal
Present: Mr. J.P. Sharma, Advocate
for the appellants.
Mr. Rameshwar Malik, Advocate
for the respondent.
A.N. Jindal, J (Oral)
The award dated 31.10.2003, passed ex-parte, was challenged
by way of the present appeal under Section 30 (1) (a) of the Act. Since the
appeal was barred by limitation by 1300 days, therefore, it is accompanied
by an application for condonation of delay. The delay was sought to be
condoned on the ground that the award was passed ex-parte, therefore,
appellants had to apply for setting aside the order of award passed by the
learned Commissioner but their application was dismissed on 17.11.2005,
thereafter, they filed Civil Writ Petition No.18550 of 2005 and Civil Writ
Petition No. 19529 of 2005 against the order dated 17.11.2005. However,
the said writ petitions were dismissed with the observations that the
petitioners were at liberty to seek remedy in accordance with law, therefore,
after dismissal of the writ petitions on 30.3.2006, the present appeal has
been filed on 24.5.2007. It has been pleaded that the delay was neither
intentional nor malafide and it is liable to be condoned.
The respondents in their reply submitted that the delay in filing
the appeal suffers from continuous negligence with an intention to avoid
compliance of the award. It was further averred that though the writ
petitions have been dismissed on 30.3.2006 but the appellants did not
approach the High Court for more than a year after the dismissal of the writ
F.A.O. No. 2289 of 2007 -2-
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petitions. It has been further observed that ex-parte order of award was in
the knowledge of the appellants and they intentionally did not file the
appeal but filed an application for setting aside the award that too on
8.9.2004 i.e. after 10 months, which was dismissed on 17.11.2005, but they
did not proceed to file the appeal which was preferred after two years i.e.
24.9.2007. Even the writ petitions were filed after a long pause. It was
further averred that in the same accident, out of which the present award
has arisen, Sher Singh brother of the present claimant died and qua that
claim the applicant has not filed any appeal which shows that he has
accepted the legality of the order dated 31.10.2003 as well as 17.11.2005.
Thus, he has prayed for dismissal of the application.
Admittedly, the award was passed on 31.10.2003 in which the
appellants did not appear despite service. This award was undisputedly
appealable under Section 30 (1) (a) of the Act. The application for setting
aside the ex-parte award an independent remedy which could not stop the
limitation for filing the appeal. The effect of the award was that the
appellants were to pay compensation therefore, it was certainly appealable.
The writ petitions were not the alternative remedy in view of the hierarchy
of the Courts to adjudicate the award. The period consumed in filing the
application for setting aside the ex-parte award or adjudication of the writ
petitions could not be considered as legal proceedings filed bonafide and in
good faith and the same could not be procured for defect of jurisdiction
which could be considered as good grounds to exclude the said period for
condoning the said delay in filing the appeal.
Finding that there are no sufficient grounds to condone the
delay, this application for condonation of delay is dismissed. Consequently,
the appeal also fails.
July 31, 2008 (A.N. Jindal) deepak Judge