Mangilal Gosai vs Prahlad Keer And Ors. on 27 October, 1999

Madhya Pradesh High Court
Mangilal Gosai vs Prahlad Keer And Ors. on 27 October, 1999
Equivalent citations: I (2000) ACC 139, 2001 ACJ 1791
Author: A Gohil
Bench: A Gohil


JUDGMENT

A.K. Gohil, J.

1. The appellant has filed this misc. appeal against the order dated 2.4.1997 passed in M.J.C. No. 21 of 1996 by which the Tribunal has dismissed application for restoration under Order IX, Rule 9 of the Code of Civil Procedure (for short ‘the Code’).

2. The appellant had filed one Claim Case No. 51 of 1996. The appellant was prosecuting the case before the Tribunal and the case was fixed for filing of written statement on 25.6.1996. On that day the appellant could not appear and the case was dismissed in default. On 20.7.96, the appellant filed an application under Order IX, Rule 9 of the Code for restoration on the ground that the learned senior counsel for the appellant had gone to Masoori and local counsel Mr. Patil could not appear because case was listed for filing of written statement and there was nothing to be done on behalf of the appellant on that day of 25.6.1996. The aforesaid application was supported by an affidavit of a senior counsel of Dhar as well as of the appellant. The aforesaid application was registered as M.J.C. No. 21 of 1996. The record of the original claim case was called. The arguments were heard and the application was dismissed by order dated 2.4.1997 on the ground that no sufficient cause is made out, against which this appeal has been preferred.

3. I have heard the learned counsel for the parties and perused the record of the court.

4. It is an admitted position on record that the appellant had filed an application for restoration within a period of limitation, i.e., within a period of 30 days. The application was supported by two affidavits but the learned Tribunal has neither directed to issue of any notice to the respondents nor fixed the case for evidence nor held any enquiry. Under Sub-rule (2) of Rule 9 of Order IX of the Code it is mandatory to issue notice to the parties before passing order on the restoration application. Under Rule 240 of the M.P. Motor Vehicles Rules 1994, the provisions of Order IX of the Code of Civil Procedure 1908 are applicable to proceedings before a Claims Tribunal insofar as they may be applicable thereto and as per practice an application under Order IX, Rule 9 of the Code must be disposed of on the evidence and not on the ground that it is a bona fide or otherwise. Even before dismissing an application for restoration of suit, the court should give plaintiff/claimant an opportunity to prove the allegation contained in the application. The objections of learned counsel for the respondent that the misc. appeal is not applicable and the appellant ought to have filed revision is also having no force. In view of the provisions of Rule 240 of the M.P. Motor Vehicles Rules 1994 read with Order XLIII, Rule 1 (c) of the Code, appeal is maintainable.

5. In view of the aforesaid reasons that neither any notice was issued nor any opportunity to prove the allegations contained in the application was provided to the appellant, the appeal succeeds and is hereby allowed. The impugned order dated 2.4.1997 is set aside and the learned Tribunal is directed to rehear the MJC No. 21 of 1996 on merits after issuing notice to the other side and also provide an opportunity of hearing and proving the allegations to the appellant. The learned Tribunal shall decide this MJC on merits as early as possible, preferably within a period of six months from the date of communication of this order. Let a copy of the order be communicated to the Tribunal immediately. No order as to costs. Record be returned. Parties through their counsel are directed to appear before the Tribunal on 22.11.1999 for obtaining necessary orders.

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