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Madhya Pradesh High Court · body

2005 DIGILAW 213 (MP)

AMIT KUMAR TIWARI v. MALTA BAI

2005-02-10

DIPAK MISRA

body2005
DIPAK MISRA, J. ( 1 ) THE question of law being common in both the cases they were heard analogously and disposed of by this singular order. For the sake of clarity and convenience the facts stated in W. P. No. 452 of 2005 are adumbrated herein. ( 2 ) THE petitioner is the owner of bus bearing registration No. MPA 6529. The said vehicle, as pleaded, was insured with oriental Insurance Co. Ltd. , respondent no. 3, met with an accident on 19. 1. 1986 as a consequence of which two persons were injured who succumbed to the same. Petitioner on 26. 1. 1986 intimated about the accident to the Branch Manager of the insurance company. ( 3 ) ACCORDING to the writ petitioner the legal representatives of the deceased filed an application under section 166 of the motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') after expiry of the period of limitation as provided under section 166 (3) of the Act. Motor Accidents claims Tribunal (in short 'the Tribunal')proceeded ex parte against the petitioner and passed an award on 22. 2. 2000. ( 4 ) AFTER the award was passed execution proceeding was initiated for realisation of the same. On 18. 6. 2004 the petitioner submitted an application raising an objection that the claim petition had not been filed within the period of limitation and, therefore, the award was a nullity. It was also urged that the award was a nullity because of deletion of necessary party, namely, the insurance company which has the obligation to indemnify the insured. It was also asserted that though the owner was set ex parte he was entitled to be noticed after the death of the original claimant when an application was filed for substitution of legal representatives. In this backdrop a prayer was made before Tribunal to declare the award as a nullity. After calling of a reply from the claimants and upon hearing the counsel for the parties, Tribunal passed the impugned order on 7. 12. 2004 rejecting the objection and declined to declare the award and the recovery proceedings as null and void. ( 5 ) I have heard Mr. Sudhir Rawat, the learned counsel for petitioner. After calling of a reply from the claimants and upon hearing the counsel for the parties, Tribunal passed the impugned order on 7. 12. 2004 rejecting the objection and declined to declare the award and the recovery proceedings as null and void. ( 5 ) I have heard Mr. Sudhir Rawat, the learned counsel for petitioner. It is submitted by him that the Tribunal has absolutely erred in law by rejecting the objection in the execution case, though the award which was sought to be executed could not have been executed being passed ignoring the peremptory period of limitation; there was impleadment of legal representatives in an illegal manner; and further there was deletion of a necessary party, the insurer. ( 6 ) IN this context I may refer with profit to paras 8 and 9 of the decision rendered in the case of Budhia Swain v. Copinath deb, AIR 1999 SC 2089 . They read as under:" (8) In our opinion, a Tribunal or a court may recall an order earlier made by it if: (i) the proceedings culminating into an order suffer from the inherent lack of jurisdiction and such lack of jurisdiction is patent; (ii) there exists fraud or collusion in obtaining the judgment; (iii) there has been a mistake of the court prejudicing a party or; (iv) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all or had died and the estate was not represented. The power to recall a judgment will not be exercised when the ground for reopening the proceedings or vacating the judgment was available to be pleaded in the original action but was not done or where a proper remedy in some other proceeding such as by way of appeal or revision was available but was not availed. The right to seek vacation of a judgment may be lost by waiver, estoppel or acquiescence. (9) A distinction has to be drawn between lack of jurisdiction. The former strikes at the very root of the exercise and want of jurisdiction may vitiate the proceedings rendering them and the orders passed therein a nullity. A mere error in exercise of jurisdiction does not vitiate the legality and validity of the proceedings and the order passed thereon unless set aside in the manner known to law by laying a challenge subject tothe law of limitation. A mere error in exercise of jurisdiction does not vitiate the legality and validity of the proceedings and the order passed thereon unless set aside in the manner known to law by laying a challenge subject tothe law of limitation. In Hira Lal Patni v. Lali Nath, AIR 1962 SC 199 , it was held (para 4): 'the validity of a decree can be challenged in execution proceedings only on the ground that the court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have seisin of the case because the subject-matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering the court entirely lacking in jurisdiction in respect of the subject-matter of the suit or over the parties to it'. " ( 7 ) IN this regard it is worth producing a passage from the decision rendered in the case of Ittyavira Mathai v. Varkey Varkey, air 1964 SC 907 :"even assuming that the suit was barred by time, it is difficult to appreciate the contention of learned counsel that the decree can be treated as a nullity and ignored in subsequent litigation. If the suit was barred by time and yet the court decreed it, the court would be committing an illegality and, therefore, the aggrieved party would be entitled to have the decree set aside by preferring an appeal against it. But it is well settled that a court having jurisdiction over the subject-matter of the suit and over the parties thereto, though bound to decide right may decide wrong; and that even though it decided wrong it would not be doing something which it had no jurisdiction to do. It had the jurisdiction over the subject-matter and it had the jurisdiction over the party and, therefore, merely because it made an error in deciding a vital issue in the suit, it cannot be said that it had acted beyond its jurisdiction. As has often been said, courts have jurisdiction to decide right or to decide wrong and even though they decide wrong, the decrees rendered by them cannot be treated as nullities. . . As has often been said, courts have jurisdiction to decide right or to decide wrong and even though they decide wrong, the decrees rendered by them cannot be treated as nullities. . . " ( 8 ) IN view of the aforesaid pronouncement of law it is crystal clear that inherent lack of jurisdiction means a power or jurisdiction which is not vested in a court of law. To put it differently, a court can be said to lack inherent jurisdiction when the subject-matter is absolutely foreign to its ambit and is totally unconnected with the recognised jurisdiction. When a court lacks inherent jurisdiction there can be no scintilla of doubt a decree can be declared a nullity. For example, a suit for declaration of right, title and interest cannot be instituted in a criminal court and if it is instituted and an order is passed the same has to be set at naught being null and void. In the case at hand, Tribunal had the jurisdiction to deal with the Us. The Tribunal while executing the award cannot enter into the spectrum that the award was passed ignoring the peremptory period of limitation provided under the statute, as that does not go to the very root of the jurisdiction of the tribunal. That award can never be regarded an order without jurisdiction. It would be at best an illegal order. Once it is regarded or assailed by way of appeal within the permissible parameters, indubitably it cannot be questioned before the Tribunal which is in seisin of the matter for the purpose of execution. ( 9 ) ON a perusal of the order passed by the Tribunal it is demonstrable that the original claimant Sumantrani breathed her last during the proceedings and her legal representatives were substituted during the pendency of the petition before Tribunal. Whether a notice was required to be sent or not is really irrelevant in a case of this nature and in any case, that facet cannot be gone into at the time of the execution of the award as it relates to the merits of the case. Whether a notice was required to be sent or not is really irrelevant in a case of this nature and in any case, that facet cannot be gone into at the time of the execution of the award as it relates to the merits of the case. It is also not a case where a judgment has been rendered in ignorance of the fact that necessary party had not been served at all and was shown as served or in ignorance of the fact that a necessary party had died and the estate was not represented. In the absence of the above said facets, I do not perceive any error in the order passed by the Tribunal. ( 10 ) CONSEQUENTLY, the writ petition, being sans merits, stands dismissed in limine. W. P. dismissed in limine. .