Court No. 21 Civil Misc. Writ Petition No. 66572 of 2009 Ashok Kumar Sureka Versus Shiv Shankar Shukla and others Hon'ble V.K.Shukla,J Present writ petition has been filed by petitioner questioning the validity of the order dated 12.11.2009 wherein application moved by the petitioner supported by application under Section 5 of Limitation Act has been rejected for setting aside exparte award passed in Motor Accident Claim Petition No. 327 of 2006. Brief background of the case is that Motor Accident Claim Petition No. 327 of 2006 had been filed wherein petitioner has been impleaded and arrayed as respondent no. 1. On 25.04.2006 in the said claim petition
notices were issued. Said notices were duly served and on behalf of
petitioner Ashok Kumar Sureka, Sri V.K. Mishra, Advocate has entered
appearance by filing authority memo on 15.11.2006 and requested for
supplying copy of the claim petition and on the said request requisite
orders were passed. Other co-respondents namely respondent nos. 2 and 3
filed their written statement and as far as petitioner is concerned no written
statement has been filed on his behalf. On 30.07.2007 orders were passed
to proceed exparte and then issues were framed on 16.08.2007. As far as
petitioner is concerned repeated adjournment has been taken from his side
and ultimately award in question has been passed and said award in
question was sought to be executed then application had been moved for
setting aside said exparte award supported by application under Section 5 of
Limitation Act. Said application in question has been rejected. At this
juncture present writ petition has been filed.
On 16.12.2009 learned counsel for the petitioner has stated that he
was ready to deposit a sum of Rs. 75,000/- before the Tribunal within two
weeks, in this background this Court directed the present writ petition for
listing today i.e.11.01.2010.
Affidavit in support of deposit has also been filed.
Learned counsel for the petitioner Sri Y.S. Sachan, contended with
vehemence that in the present case opinion which has been formed by
Additional District Judge, Court No. 5 Kanpur Nagar while rejected the
application under Section 5 of Limitation Act is totally arbitrary and
erroneous opinion and for ends of justice order in question should be
quashed, opportunity should be afforded to the petitioner.
After respective arguments have been advanced factual position
which is emerging in the present case is that claim petition was filed on
25.04.2006. Notices were issued and on behalf of petitioner his counsel Sri
V.K.Mishra, Advocate has entered appearance and had made request for
supplying copy of claim petition and on the said request requisite orders
have been passed. Other co-respondents no. 2 and 3 had filed their reply.
On 30.07.2007 looking into the conduct of the petitioner orders were passed
to proceed exparte. Issues were framed on 16.08.2007 and on the said date
no one had entered appearance on behalf of petitioner and whenever dates
were fixed in future repeated adjournment has been sought for on behalf of
petitioner through different counsels whose names have been referred to in
the impugned order. Evidence has been concluded and judgement has been
delivered and thereafter execution proceedings has been undertaken then
such a request has come forward. Motor Accident Claims Tribunal has taken
into account the conduct of the petitioner as well as his counsel and clearly
found that ground which has been set out are totally ingenuine and
insufficient ground and with these observation said application under
Section 5 of Limitation Act has been rejected. View taken by Motor Accident
Claims Tribunal cannot be said to be arbitrary view from any point of view
warranting interference by this Court in exercise of its authority of judicial
review under Article 226 of the Constitution of India.
Consequently, writ petition as it has been framed and drawn is
No order as to cost.