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2008 DIGILAW 1746 (RAJ)

Bharat Timber Industries v. Narpat Singh

2008-07-22

H.R.PANWAR

body2008
JUDGMENT 1. - By the instant writ petition under Art. 227 of the Constitution of India, the petitioner has challenged the orders dated 27.09.2007 and 29.10.2003 Annex.1 and Annex.2 respectively. However, when the matter came up before this Court on 03.04.2008, Mr. J. Gehlot counsel appearing for the petitioner has confined the writ petition only to the extent of giving challenge to the order dated 27.09.2007 Annex.1 and has given up the challenge to the order Annex.2 dated 29.10.2003. Thus, the writ petition is confined to the challenge to the order dated 27.09.2007 passed by respondent No.2 Workman Compensation Commissioner (for short 'the Commissioner' hereinafter). 2. I have heard learned counsel for the parties. 3. It is contended by learned counsel for the petitioner that Mr. Purkharam Bhanwariya Advocate was engaged by the petitioner to defend his case on receipt of the notice issued by the Commissioner on a claim petition filed by respondent No.1 seeking compensation under the provisions of Workmen Compensation Act, 1923 (for short 'the Act of 1923' hereinafter), however, subsequent thereto, according to learned counsel for the petitioner, he left the practice and therefore, the petitioner could not produce the evidence. Learned counsel for the petitioner has relied on a decision of Hon'ble Supreme Court in M.K. Prasad v. P. Arumugam, AIR 2001 SC 2497 . 4. Learned counsel appearing for the respondent claimant supported the order impugned and contended that the application filed by the petitioner before the Commissioner under Order 9 Rule 13 CPC seeking setting aside of the award dated 29.10.2003 Annex.2 was misconceived to the extent that there had not been ex-parte order against the petitioner. Learned counsel for the respondent has given the details of the events of the case and submits that a claim petition was filed by the respondent No.1 on 21.08.2000 claiming compensation against the petitioner. Notice of the claim petition issued by the Commissioner was served on the petitioner and the counsel representing the petitioner appeared before the Commissioner on 05.12.2000 and sought time to file reply, however, the matter was posted to 06.01.2001. On 06.01.2001, neither the petitioner nor his counsel appeared and the Commissioner proceeded ex-parte by order dated 06.01.2001. Notice of the claim petition issued by the Commissioner was served on the petitioner and the counsel representing the petitioner appeared before the Commissioner on 05.12.2000 and sought time to file reply, however, the matter was posted to 06.01.2001. On 06.01.2001, neither the petitioner nor his counsel appeared and the Commissioner proceeded ex-parte by order dated 06.01.2001. Thereafter, an application was moved by the petitioner seeking to set aside the ex-parte proceeding and by order dated 16.03.2001 the Commissioner allowed the application and set aside the ex-parte proceeding initiated by order dated 06.01.2001. Thereafter, several opportunities were granted to the petitioner to file the reply i.e. on 07.05.2001, 15.05.2001 and 01.06.2001, however, no reply was filed and an application under Order 6 Rule 5 CPC was filed by the petitioner on 26.06.2001. Subsequent thereto, on 25.07.2001, a reply was filed by the petitioner. The Commissioner framed the issues on 25.07.2001. The matter was posted for recording the evidence of the claimant and statement of PW-1 and PW-2 were recorded. Thereafter several opportunities were granted to cross-examine the claimant's witnesses, however, they were not cross-examined and the cross-examination was closed on 11.10.2002. Thereafter the matter was adjourned to 10.12.2002, 07.01.2003, 27.01.2003 and 25.02.2003 and ultimately by award Annex.2 dated 29.10.2003 the Commissioner granted compensation in favour of the respondent claimant and against the petitioner. Instead of challenging the award dated 29.10.2003 by way of an appeal as provided under Sec. 30 of the Act of 1923, the petitioner filed an application under Order 9 Rule 13 CPC which came to be dismissed by order dated 27.09.2007 by a well reasoned order. 5. From the perusal of the award Annex.2, it nowhere appears that an ex-parte proceeding has ever been initiated, though on the date of hearing, no one appeared for the petitioner. Be that as it may, it was a case throughout contested by the petitioner, including filing of the reply. Even otherwise, looking to the events as noticed above, it appears that the Commissioner liberally granted several adjournments and at one point of lime even set aside the ex-prate proceeding initiated against the petitioner, yet the petitioner failed to cross-examine the witnesses and produce evidence after having availed several opportunities as noticed above and ultimately the award has been passed. 6. Learned counsel for the respondent has relied on a decision of this Court in Ashok Kumar Gaur and Ors. 6. Learned counsel for the respondent has relied on a decision of this Court in Ashok Kumar Gaur and Ors. v. The MACT, Kota and Anr., 2003(3) DNJ (Raj.) 1095 wherein this Court while considering the scope of Articles 226 and 227 of the Constitution of India dealing with a case in respect of application for setting aside the ex-parte award along with condonation of delay filed before the Tribunal which was rejected by the Tribunal and matter came up before this Court, held that the Tribunal has given detailed reasons for not accepting the application under Sec. 5 of the Limitation Act. The reasons given by the petitioner therein for not appearing before the Tribunal are also contradictory and the this Court did not interfere with the order of the Tribunal whereby the application for setting aside ex-parte award was rejected. 7. The decision in M.K. Prasad v. P. Arurniigam relied on by the petitioner turns on its own facts. In that case there was no case to cast on the conduct of the appellant therein as irresponsible litigant. Whereas, in the instant case, noticing the events as noticed above, it is obvious that it was the petitioner who acted as an irresponsible litigant despite the fact that the Commissioner was liberal in granting several opportunities to contest the case. In the circumstances, therefore, the decision relied on by counsel for the petitioner is of no help to the petitioner. 8. In the facts and circumstances of the case. I do not find any good ground to interfacere in the order impugned. The writ petition is therefore, dismissed. No order as to costs.Writ Petition Dismissed. *******