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2002 DIGILAW 461 (PNJ)

Attar Singh v. Balwant Singh

2002-04-26

M.M.KUMAR

body2002
JUDGMENT M.M. Kumar, J. - This revision petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity, the Code) by the judgment debtor- petitioner (for brevity, the JD-petitioner) is directed against the order dated 22.3.2001 passed by the Motor Accident Claims Tribunal, Narnaul (for brevity, the Tribunal) exercising the powers of executing Court dismissing the application of the JD-petitioner filed under Order 9, Rule 13 of the Code for setting aside the award dated 19.10.1995. The only ground to reject the application is huge delay of 5 years in filing the application. 2. Brief facts necessary for deciding the controversy raised in this revision petition are that one Balwant Singh claimant-respondent No. 1 filed claim petition bearing MACT Case No. 16 of 26.2.1994 before the Tribunal at Narnaul alleging that he was driver of Haryana Roadways bus No. R-36-0936 which met with an accident at about 10.30/11.00 A.M. on 3.9.1993. The truck bearing No. HR-26-8083. came from the opposite direction which was rashly and negligently driven by the driver-respondent No. 2. As a result of the accident, claimant- respondent No. 1 suffered multiple injuries and the Tribunal at Narnaul vide award dated 19.10.1995 granted him compensation to the tune of Rs. 15,000/- with interest at the rate of 12% per annum from the date of filing the claim petition till realisation. The JD-petitioner Attar Singh and drive respondent Ishwar Singh were held liable. It is pertinent to mention that the JD- petitioner was proceeded ex parte and the award was passed in his absence. 3. Out of the same accident, another petition emanated wherein Kalawati and others claimed in MACT Case No. 9 of 1994 compensation in lieu of the injuries suffered by her and others. The Tribunal allowed that claim petition also on 19.10.1995. In that claim petition too the JD-petitioner was proceeded ex pate. When the claimants Kalawati and others filed execution petition for realisation of the awarded amount, the JD-petitioner came to know of the passing of the ex parte award by the Tribunal. Thereafter, he moved an application under Order 9, Rule 13 of the Code seeking setting aside of the ex parte award. That application was allowed on 5.4.1999. The case was decided again on 28.7.1999 and the Tribunal held the insurance company of the truck liable, which has been exonerated in accordance with the award dated 19.10.1995. 4. Thereafter, he moved an application under Order 9, Rule 13 of the Code seeking setting aside of the ex parte award. That application was allowed on 5.4.1999. The case was decided again on 28.7.1999 and the Tribunal held the insurance company of the truck liable, which has been exonerated in accordance with the award dated 19.10.1995. 4. When the execution was filed for realisation of the awarded amount by the claimant respondent No. 1, it is at that stage that the JD-petitioner came to know about the award dated 19.10.1995 and filed an application before the Tribunal for setting aside the award. However, his application was dismissed on 22.3.2001 on the principal ground that there has been delay of more than 5 years in filing the application. The order passed by the Tribunal reads as under : "It is admitted by respondent No. 3 that he was duly served for 23.1.1995 but he did not appear before the Tribunal because the Manager of the Insurance Company asked him not to appear and undertook to pay the compensation to the claimant. It means pendency of the petition was within his knowledge from the date he was served. The period of limitation to file an application for setting-aside the exparte award is 30 days from the date of knowledge. As stated above, this application is filed after a period of more than 5 years. Application is thus dismissed being hopelessly time barred." 5. Aggrieved by the dismissal of the application under order 9, Rule 13 of the Code, the JD-petitioner has approached this Court by filing the present revision petition. 6. I have heard Shri N.K. Sanghi, learned counsel for the JD-petitioner and Shri Amit Rawal, learned counsel for insurance company-respondent No. 3. 7. Shri N.K. Sanghi, learned counsel for the JD-petitioner has argued that once in a connected matter, the ex parte order arising out of the same accident has been set aside on 5.4.1999 by allowing the application of the JD-petitioner, then refusing to set aside the similar order on the ground of delay would cause a serious prejudice to the rights of the JD petitioner. He has further argued that the result of setting aside the order dated 19.10.1995 which has imposed a liability of Rs. He has further argued that the result of setting aside the order dated 19.10.1995 which has imposed a liability of Rs. 15,000/- on the JD-petitioner is that a new award was passed on 28.7.1999 holding the insurance company-respondent No. 3 liable to pay the awarded amount and the JD-petitioner was exonerated. According to the learned counsel, the delay in filing the application has been very well explained by him and it has also been explained that he approached the insurance company-respondent No. 3 which assured him that his interest would be taken care of. 8. Shri Amit Rawal, learned counsel for insurance company-respondent No. 3, on the other hand has argued that the JD-petitioner was served on 23.1.1999 and he preferred not to appear and suffered ex parte award dated 19.10.1995. 9. I have thoughtfully considered the respective submissions made by learned counsel for the parties and am of the view that the order passed by the Tribunal dated 22.3.2001 suffers from patent illegality and is thus liable to be set aside. Order 9, Rule 13 of the Code reads as under : ORDER IX APPEARANCE OF PARTIES AND CONSEQUENCE OF NON-APPEARANCE 1 to 12 - 13. Order 9, Rule 13 of the Code reads as under : ORDER IX APPEARANCE OF PARTIES AND CONSEQUENCE OF NON-APPEARANCE 1 to 12 - 13. Setting aside decree ex parte against defendant - In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as if thinks fit, and shall appoint a day for proceeding with the suit : Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also : [Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim.] [Explanation - Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under the rule for setting aside that ex parte decree.] 10. A perusal of the above mentioned provisions shows that even if the service is effected and the judgment debtor is able to show any other sufficient cause, for non-appearance, then power under Order 9, Rule 13 of the Code for setting aside the ex parte order could always be exercised. The Supreme Court in the case of Yallawwa (Smt.) v. Shantavva (Smt.), (1997)11 SCC 159 considered the provisions of Order 9, Rule 13 of the Code. The Supreme Court in the case of Yallawwa (Smt.) v. Shantavva (Smt.), (1997)11 SCC 159 considered the provisions of Order 9, Rule 13 of the Code. The provisions of Order 9, Rule 13 of the Code have also been considered by the Supreme Court in numerous other judgments and the preponderance of the opinion appears to be that a liberal approach should be adopted in interpreting the expression "was prevented by any sufficient cause from appearing:. These cases are Uco Bank v. Iyengar Consultancy Services Pvt. Ltd., 1994 Supp(2) SCC 399 ; Kumud Lata Das v. Indu Parsad, (1996)11 SCC 195 ; G.P. Srivastava v. R.K. Raizada and others, (2000-2)125 PLR 544 (SC) ; Ramon Services Pvt. Ltd. v. Subhash Kapoor and others, (2001)1 SCC 118 and Plasto Pack Mumbai and another v. Ratnakar Bank Ltd., (2001)6 SCC 683. In the case of G.P. Srivastava (supra), their Lordships of the Supreme Court have ruled for adhering to an approach which would enable the case to be heard on merits rather than its dismissal on the ground of limitation or for lack of sufficient cause for appearance. The observations of their Lordships in paragraph 7 are highly useful and the same read as under :- "Under Order 9 Rule 13 CPC an ex parte decree passed against a defendant can be set aside upon satisfaction of the Court that either the summons were not duly served upon the defendant or he was prevented by any "sufficient cause" from appearing when the suit was called on for hearing. Unless "sufficient cause" is shown for non-appearance of the defendant in the case on the date of hearing, the court has no power to set aside an ex parte decree. The words "was prevented by any sufficient cause from appearing" must be liberally construed to enable the court to do complete justice between the parties particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order 9 Rule 13 has to be construed as elastic expression for which no hard and fast guidelines can be prescribed. The courts have wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. Sufficient cause for the purpose of Order 9 Rule 13 has to be construed as elastic expression for which no hard and fast guidelines can be prescribed. The courts have wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The "sufficient cause" for non-appearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time. If "sufficient cause" is made out for non- appearance of the defendant on the date fixed for hearing when ex parte proceedings were initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where the defendant approaches the court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits." (Emphasis supplied) 11. In the present case, the JD-petitioner was assured by respondent No. 3 that his cause will be taken care of and he was prevented from appearing before the Court. It has also been averred that the JD-petitioner came to know of the award when he was served with the execution application for execution of award dated 19.10.1995. He has filed the application for setting aside the ex parte award on 23.1.2001. Therefore, I am of the considered opinion that the delay in filing of the application under Order 9, Rule 13 of the Code deserves to be condoned especially when the award dated 19.10.1995 has been set aside against this very JD-petitioner in Claim Petition No. 9 of 1994 on 5.4.1999 and in the fresh litigation an order has been passed on 28.7.1999 holding that it is the insurance company who was liable to pay the awarded amount and the JD-petitioner has been exonerated of all the liabilities. 12. For the reasons stated above, this revision petition succeeds. Order dated 22.3.2001 passed by the Tribunal is set aside. 12. For the reasons stated above, this revision petition succeeds. Order dated 22.3.2001 passed by the Tribunal is set aside. The application of the JD- petitioner under Order 9, Rule 13 read with Section 151 of the Code is allowed and the award dated 19.10.1995 passed by the Tribunal is set aside in relation to the JD-petitioner with a direction to the Tribunal to decide the case afresh after affording opportunity to the JD-petitioner. It shall be appreciated if the case is decided and the awarded amount is disbursed to the claimants within a period of 6 months from the date of receipt of copy of this order. The JD-petitioner shall be entitled to the above mentioned relief on payment of Rs. 3,000/- as costs. The costs shall be paid to the claimant- respondent. Petition allowed.