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Court No.21
Civil Misc. Writ Petition No.37917 of 2010
Bharat Ram Mishra and another
Versus
Additional District Judge/ M.A.C.T.
Room No.2, Alahabad and others
Hon'ble V.K. Shukla, J.
Present writ petition has been filed questioning the validity of order dated
03.04.2010 passed by Motor Accident Claims Tribunal, rejecting application
under Section 5 of the Limitation Act, filed along with Restoration Application
under Order IX Rule 13 C.P.C.
Brief background of the case, as mentioned in the writ petition, is that the
Motor Accident Claim Petition was filed by the claimants Deshraj and Pushpa
Devi in respect of accident, which had taken place on 29.05.1999, wherein
their two years’ aged son had died. On the said claim petition being filed, the
petitioners entered appearance through their counsel and thereafter
disappeared, as such the Motor Accident Claims Tribunal was constrained to
pass order on 05.03.2006 to proceed exparte. Thereafter evidence was
adduced on behalf of the claimants and award was passed on 23.02.2007. For
realizing the amount in question, the award was put for execution, and
thereafter an application was moved on 09.04.2009 by the petitioners
contending therein that the award in question was exparte and the same
should be set aside. To the said application objections were filed on
25.03.2010. The Motor Accident Claims Tribunal considered the matter and
found that the cause furnished in the delay condonation application was not at
all sufficient for non appearance, and in this background, the delay
condonation application was dismissed and the effect of the same was that the
application under Order IX Rule 13 C.P.C. stood dismissed. At this juncture,
present wrti petition has been filed.
Sri Ravindra Kumar, learned counsel for the petitioner, contended with
vehemence that in the present case liberal view ought to have been taken, as
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the sufficiency of cause had been validly explained, as such delay condonation
application ought to have been allowed and the matter ought to have been
decided on merits.
Factual position in the present case is that the claim petition No.536 of
2000, Deshraj vs. Bharat Ram Mishra and another, was filed way back in the
year 2000 by the claimants Deshraj and Pushpa Devi. On the said claim
petition being filed, both the petitioners have accepted that they had received
summons, entered appearance before the Tribunal and got their vakalatnama
filed. It has been mentioned in the application moved for restoration that after
filing vakalatnama, applicant No.2 left for Mumbai and the son of applicant
No.1 had fallen ill, on account of his treatment further appearance could not be
put in, and case could not be pursued. It has been stated that the petitioners
acquired knowledge of the proceedings on 01.04.2009 and they got examined
the matter on 04.04.2009, thereafter, application in question was moved.
Objections to the said application was filed contending therein that totally
untruthful and self contradictory statement of fact had been mentioned. The
Motor Accident Claims Tribunal perused the original file and found that from the
side of the petitioners time had been asked for filing written statement, and
when considerable period elapsed and no written statement could be filed,
then orders were passed on 05.03.2006 to proceed exparte. The Motor
Accident Claims Tribunal has taken note of the fact that no details have been
furnished as to whether son of the petitioner had fallen mentally ill prior to
05.03.2005 or not, as date mentioned in the first prescription of his son was
24.01.2006 and the order for proceeding exparte was passed passed on
05.03.2006. The Motor Accident Claims Tribunal has found that the grounds
mentioned in the application were not credible and they had been mentioned
only for the purposes of the case. Once vague and evasive statement of fact
has been mentioned in respect of illness of the son, then in such a situation,
sufficiency of cause as well as bona fides have been lacking and missing, as
such Motor Accident Claims Tribunal cannot be said to be in error in rejecting
the application moved for condoning delay containing wholly vague and
evasive statements of fact in respect of the illness of the son of the petitioners,
specially in the background when petitioners were aware of the proceedings
and had even put in appearance, but subsequently disappeared after taking
time for filing written statements. In such a situation and in such a background,
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discretion has been rightly exercised by the Motor Accident Claims Tribunal
finding the cause furnished to be insufficient, then this Court cannot act as
Court of appeal or take a different or contrary view, as authority of judicial
review is not akin to the power of appeal.
Consequently, writ petition, as has been framed and drawn is dismissed.
03.07.2010
SRY