ORDER 30.07.2007 — This writ petition has been filed by the owner of the vehicle/opposite party No. 1 before the Second Motor Accident Claims Tribunal, challenging the order-dated 31.05.1994 passed in MJC No. 2 of 1994. Heard Mr. A.K.Mishra, learned counsel for the petitioner, Mr. L. Pradhan, learned counsel for opposite parties 1 and 2 and Mr. M. Sinha, learned counsel for opposite party No. 3. Mr. Mishra, learned counsel for the petitioner submits that an ex parte award dated 28.08.1993 was passed against the petition¬er by the learned second Motor Accident Claims Tribunal (S.D.), Berhampur in MAC No. 344/92 (51/92). Since the owner of the vehicle/opposite party No.1/petitioner did not appear in the case before the Tribunal on the date fixed nor filed his written statement, he was set ex parte and as such an award was passed against the Insurance Company/opposite party No. 2 on consent and ex parte against the owner of the vehicle/opposite party No. 1 directing the petitioner/owner of the vehicle to pay a sum of Rs. 35,000/- as compensation to the petitioner with interest @ 9% per annum from the date of application, i.e. 09.01.1992 till realiza¬tion alongwith cost of Rs. 500/-. After the said ex parte award was passed an execution proceeding was initiated against the petitioner and when the notice of the said execution case was served on him, he came to know with regard to the said ex parte award passed by the learned Tribunal and then filed an applica¬tion (MJC No. 2/94) under Order IX, Rule 13 read with Section 151 of the C.P.C. on 10.05.1994 to set aside the ex parte award passed on 28.08.1993 without accompanied by an application for condonation of delay, even if there is delay of about 254 days in filing of the said application. The said application, i.e. MJC No. 2/94 was dismissed by the learned Second Motor Accident Claims Tribunal (S.D.) Berhampur vide order dated 31.05.1994 with the following observation : - “Perused the office objection as well as the judgment passed in this case on 28.08.1993. Since the judgment pronounced in this case on 28.08.1993 was a contested one, such a petition under Order 9, Rule 13 filed by the respondent No. 1 is not maintain¬able. Hence the MJC No. 2/94 is dismissed.” Mr. Since the judgment pronounced in this case on 28.08.1993 was a contested one, such a petition under Order 9, Rule 13 filed by the respondent No. 1 is not maintain¬able. Hence the MJC No. 2/94 is dismissed.” Mr. A.K.Mishra, learned counsel for the petitioner submits that there is a clear cut provision in Rule 20 of the Orissa Motor Vehicles (A.C.T.) Rules and the same provides that the following provisions of the First Schedule to the Code of Civil procedure, 1908 shall, so far as may be, applied to proceedings before the Claims Tribunals, namely, Order V, Rules 9 to 13 and 15 to 30; Order IX, Order XIII, Rules 3 to 10; Order XVI, Rules 2 to 21; Order XVIII and Order XXIII Rules 1 to 3 and in support of his contention Mr. Mishra cited the decision reported in 66 (1988) CLT 587 wherein it has been held that as enjoined by Rule 20, Order 9 C.P.C. is wholly applicable to the proceeding of a claim case, irrespective of its stage. Mr. Sinha, learned counsel appearing on behalf of the opposite party No. 3/Insurance Company submits that the so called ex parte award was passed on 28.08.1993 and the petition filed under Order IX, Rule 13 read with Section 151 of the C.P.C. was filed on 10.05.1994, i.e. more than 8 months after the pronounce¬ment of the ex parte judgment. No application for condonation of delay was also filed by the petitioner. In that view of the matter, even though provisions of Order IX of the Code of Civil Procedure is applicable to the case, since the petition under Order IX Rule 13 was not filed within the prescribed period of limitation, the Tribunal has rightly rejected the application filed by the present petitioner. The ratio of the decision in the case of Asit Kumar Mohanty vrs. 2nd M.A.C.T., Cuttack reported in 66 (1988) CLT 587 shall not be applicable to the case. Learned Tribunal even though made an observation that the award was a contested award on the basis of the ordering portion of the award, there was also another defect pointed out in the office note to the effect that “This MJC petition is barred by time”. As such no illegality has been committed by the learned Tribunal in rejecting the said application. Mr. Pradhan, learned counsel for the opposite party Nos. As such no illegality has been committed by the learned Tribunal in rejecting the said application. Mr. Pradhan, learned counsel for the opposite party Nos. 1 and 2/claimants submits that the claim application is of the year 1992, which was filed by the sons of the deceased claiming com¬pensation for the death of their mother in a motor accident on 11.11.1991. The award was passed on 28.08.1993. Even though in the meantime more than 15 years have passed from the date of filing of the claim application and 14 years have passed from the date of the award, the claimants have not received anything towards compensation. The application for setting aside the ex parte award was filed on 10.05.1994 i.e. about 8 months after the award was passed. The office note of the MJC also clearly indi¬cates that “the MJC petition is barred by time” the owner of the vehicle was directed to pay the amount since there is a categori¬cal findings by the learned Tribunal that the offending vehicle was not under valid insurance with the Insurance Company/Opposite party No. 2 (in the claim application), on the basis of a memo filed by the Insurance Company to that effect and in that view of the matter after satisfying the award the owner of the vehicle can proceed against the Insurance Company for realization of the entire amount paid by it alongwith cost and interest for misguid¬ing the Court for such an award, on the basis of a wrong statement, if actually the vehicle was having a policy of insur¬ance under the Insurance Company. While considering the submissions made by learned counsel for the respective parties, I have gone through the records of the case. The records clearly indicates that the owner of the vehicle was set ex parte on 17.08.1992, since he did not appear before the learned Tribunal on the date fixed and filed his writ¬ten statement inspite of valid service of notice. Paragraph -3 of the judgment clearly indicates that “R-1-owner of the offend¬ing motor cycle did not contest the case and was set ex parte”. But in the ordering portion of the award it has been observed “the Misc. Case be and the same is allowed in part on contest with cost of Rs. 500/-. The R.1-owner of the offending vehicle is directed to pay a sum of Rs. But in the ordering portion of the award it has been observed “the Misc. Case be and the same is allowed in part on contest with cost of Rs. 500/-. The R.1-owner of the offending vehicle is directed to pay a sum of Rs. 35,000/- as compensation to the petitioner with interest at the rate of 9% per annum from the date of application i.e. 9.1.1992 till realization” even though actually in the instant case the owner was set ex parte and the insurance company contested the case and such award is an actual award ex parte against the owner of the vehicle and on contest against the Insurance Company. As it appears, the office note in the MJC regarding the award as a “contested one” was on the basis of the final ‘order’ in the judgment/award even though actually the award was an ex parte award against the owner/opposite party No. 1. Simultaneously the office note also indicates that “MJC petition is barred by time”, which is a correct note, keeping in view the prescribed period of limitation for filing an applica¬tion under Order IX Rule 13 C.P.C. for setting aside an ex parte judgment/award. The ratio of the decision cited by Mr. Mishra, learned counsel for the petitioner may not be made applicable to this case. In the said reported decision in the case of Shri Asit Kumar Mohanty (supra) it has been held by this Court that “as enjoined in Rule 20 of the Rules Order IX of the Code is wholly applicable to the proceeding of a claim case” and this is a case where the application for setting aside the ex parte order was not rejected on the ground of non-applicability of the provisions of Order IX of the C.P.C., but as because the award was a ‘contested one’ as observed in the award and in a “contested” case question of setting aside “an ex parte” award does not arise at all. Considering the submissions made by the learned counsel for the respective parties and keeping in view of the fact that vide order dated 31.05.1994, the MJC No. 2 of 1994 was dismissed taking into account the office note to the effect that “the judgment passed in MAC No. 344/92 (51/92) on 28.8.93 is the contested judgment. Considering the submissions made by the learned counsel for the respective parties and keeping in view of the fact that vide order dated 31.05.1994, the MJC No. 2 of 1994 was dismissed taking into account the office note to the effect that “the judgment passed in MAC No. 344/92 (51/92) on 28.8.93 is the contested judgment. Hence the petition under Order IX Rule 13, C.P.C. filed by the R.1 has no application at this stage”, but not taking into account the other office note to the effect that “this MJC petition is barred by time” - with the observation that “since the judgment pronounced in this case on 28.8.1993 was contested one, such a petition under Order IX Rule 13 C.P.C. filed by R.1 petition is not maintainable. Hence Misc. Case No. 2 of 1994 is dismissed”, as it is appears the learned Tribunal has not taken into consideration the actual factual matrix of the case while dismissing the application under Order IX Rule 13, C.P.C. on the ground of maintainability. Since the owner of the vehicle was set ex parte and only the Insurance Company was contesting the case, the award ought to have been passed ex parte against the owner (opposite party No. 1) and on contest against the insurance company (opposite party No. 2). As such, the petition filed by the opposite party No. 1/owner of the vehicle under Order IX Rule 13 of the C.P.C. for setting aside the ex parte award was maintainable. However, it was dismissed with a wrong observation in the order that it was passed on contest even though it was not so, so far as the present petitioner is concerned. The Tribunal could have dismissed the application on the ground of delay, since the application was filed 8 months after the award was passed and without being accompanied by an application for condo¬nation of delay. In view of the above, the prayer made in the writ petition is allowed. The order dated 31.05.1994 passed in MJC 2/94 is quashed/set aside. The Tribunal could have dismissed the application on the ground of delay, since the application was filed 8 months after the award was passed and without being accompanied by an application for condo¬nation of delay. In view of the above, the prayer made in the writ petition is allowed. The order dated 31.05.1994 passed in MJC 2/94 is quashed/set aside. As agreed to by learned counsel for respective parties, all the respective parties shall appear before the Tribunal on 11.09.2007 and in presence of all the parties, the Tribunal shall consider the petition filed under Order IX Rule 13 of the C.P.Code on the basis of the available materials only, on its own merit and dispose of the same in accordance with law, keeping in view the observations made above. It is made clear that in case the award dated 28.08.1993 passed in MAC No. 344/92 (51/92) is finally set aside by allowing the application, as agreed to by learned counsel for respective parties, xx x x x x x learned Tribunal shall do well to dispose of the main claim application by giving a chance to the petitioner for filing his written statement and dispose of the claim petition within a period of three months. The writ petition is accordingly disposed of with the above observation and direction. Petition disposed of.