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2009 DIGILAW 2294 (RAJ)

Kalooram v. Allanoor

2009-11-05

GOPAL KRISHAN VYAS

body2009
Hon'ble VYAS, J.—The instant appeal has been filed under Order 43 Rule 1 CPC read with Section 110-D of the Motor Vehicle Act, 1939 read with Section 173 of the Motor Vehicle Act, 1988 against the order dated 24.9.1994 passed by Addl. District & Sessions Judge, Nagaur in Civil Misc. Case No. 4/94. 2. According to the facts of the case, a claim petition was filed by respondent Nos. 1 and 2 for compensation because son of respondent Nos. 1 and 2 died in an accident occurred on 28.11.1981 upon the road situated in between Nagaur to Mundawa due to rash and negligent driving of appellant Kalu Ram. Learned trial Court passed as award on 17.8.1992 whereby compensation of Rs. 1,08,400/- along with interest @ 12% from the date of filing claim which is dated 22.4.1982 was allowed. The said award was passed ex-parte against the appellant Kalu Ram and one Ram Bux and according to the award 50% of liability was imposed upon the Insurance Company and for rest of the amount appellant Kalu Ram and Ram Bux were held liable to pay. 3. After passing, the aforesaid award by the Motor Accident Claims Tribunal, Nagaur, the execution proceedings were initiated against the appellant Kalu Ram and Ram Bux. After initiating execution proceedings, an application under Order 9 Rule 13 read with Section 151 CPC for setting aside the ex parte order dated 4.2.1983 was filed on 16.2.1994. Upon the said application filed by the appellant Kalu Ram, the notices were issued and thereafter respondents filed their reply and brought to the notice of the trial Court that inspite of service appellant-non-petitioner Kalu Ram did not appear before the Court on 4.2.1983, therefore, the order of ex-parte was passed by the Court. Thereafter, the matter was transferred to the Addl. District & Sessions Judge, Nagaur where again notice was issued to Kalu Ram and after receiving notice his counsel Mr. Nand Kishore Acharya appeared and participated in the proceedings and finally award was passed on 17.8.1992 but till passing of the award, no application for setting aside the ex-parte order dated 4.2.1983 was filed by the appellant nor he has ascertained what proceedings are going on. Therefore, at this stage, in the year 1994, such an application filed by Kalu Ram is totally untenable and suffers from gross delay which too is not explained. Therefore, at this stage, in the year 1994, such an application filed by Kalu Ram is totally untenable and suffers from gross delay which too is not explained. Learned trial Court while rejecting such application filed under Order 9 Rule 13CPC held that the reasons mentioned in the application for setting aside the exparte order dated 4.2.1983 are not acceptable because after six years when notices were issued by the Court where the case was transferred, no efforts were made by the appellant for setting aside the ex parte order dated 4.2.1983. Further, it is observed that even after service and upon appearing before the Court through counsel Nand Kishore, no efforts were made to file an application for setting aside the ex-parte order dated 4.2.1983 and for the first time in the year 1994, such an application has been moved that too when execution proceedings were initiated against the appellant Kalu Ram. Learned trial Court dismissed the application on 24.9.1994 which was filed on 16.2.1994, that too, after passing the award by the Tribunal. 4. None appears on behalf of the appellant and on 8.7.1998, the name of respondent No. 3 Ram Bux was ordered to be deleted and today this case has come up for hearing. 5. The appellant has stated in this appeal that learned trial Court has committed an error while dismissing the application filed under Order 9 Rule 13 CPC because the order for proceeding ex parte dated 4.2.1983 was passed without proper service of notice upon him. The appellant never refused to accept summons and the notice was not accompanied with the copy of the claim also, therefore, learned trial Court has illegally proceeded ex parte against him vide order dated 4.2.1983. It is further stated in the appeal that though the summons after the transfer of the case were received by the appellant and thereafter, he engaged the counsel Mr. Nand Kishore Acharya to appear and plead his case but due to fracture in hi leg, Advocate Mr. Nand Kishore could not attend the Court. Therefore, he did not inform the appellant that award has been passed by the trial Court. Nand Kishore Acharya to appear and plead his case but due to fracture in hi leg, Advocate Mr. Nand Kishore could not attend the Court. Therefore, he did not inform the appellant that award has been passed by the trial Court. Therefore, learned trial Court has committed an error while not accepting the plea of the appellant that no notice was served upon him prior to passing of the order dated 4.2.1983, so also, the fact that after service in the year 1989 when he engaged his counsel Mr. Nand Kishore, he did not appear before the Court due to fracture, therefore, the order impugned deserves to be quashed and application filed by the appellant under Order 9 Rule 13 CPC for setting aside the ex parte order dated 4.2.1983 deserves to be allowed. 6. Learned counsel for the respondents submits that learned trial Court has rightly dismissed the application filed under Order 9 Rule 13 CPC by the appellant because admittedly, it is found by learned trial Court that summons issued by the Court were served upon the appellant but he did not appear on 4.2.1983. Further, it is also observed after perusing the record that order for proceeding ex parte was passed by the trial Court on 4.2.1983. Thereafter, the case was transferred to another Court and the said Court again issued notice for appearance and after service, his counsel Mr. Nand Kishore Acharya appeared before the Court on 4.5.1989 but no application for setting aside the order dated 4.2.1983 was filed till passing of the final award on 17.8.1992. Therefore learned trial Court while giving cogent finding based upon the material facts of the case has rightly dismissed the application filed under Order 9 Rule 13 CPC for setting aside the order for proceeding ex parte against the appellant. Therefore, no interference is required. 7. I have considered the pleading of the case as well as the arguments raised by both the counsel for the respondents. 8. Admittedly, in this case, there is finding of learned trial Court that notices were properly served upon the appellant for appearing before the Court on 4.2.1983 but he did not chosen to appear before the Court, therefore, an order was passed by trial Court. 8. Admittedly, in this case, there is finding of learned trial Court that notices were properly served upon the appellant for appearing before the Court on 4.2.1983 but he did not chosen to appear before the Court, therefore, an order was passed by trial Court. It is also admitted position of the case that after transfer, the transferee Court also issued notice for appearance of appellant before the Court and in pursuance of the said notice Mr. Nand Kishore Acharya, Advocate appeared before the Court on 4.5.1989. Meaning thereby, on 4.5.1989 it was well within the knowledge of his counsel and the appellant that there is an order for proceeding ex parte against him passed by the Court on 4.2.1983 but till adjudication of the matter on 17.8.1992, no application for setting aside the order dated 4.2.1983 was filed. More so, Mr. Nand Kishore Acharya, Advocate appeared before the Court. Meaning thereby, at very belated stage attempt had been made by the appellant by way of filing an application on 16.2.1994 for setting aside the order for proceeding ex parte against him dated 4.2.1983, that too, when execution proceedings were initiated against him. For such delay since 4.2.1983 to 16.2.1994, no explanation has been furnished by the appellant even before this Court that why no application for setting aside the order dated 4.2.1983 has been filed. 9. In this view of the matter, learned trial Court has rightly arrived at with the finding that there is no explanation for none-appearance on 4.2.1983 by the appellant, so also, after appearing through his counsel on 4.5.1989 in the matter no efforts were made by the appellant to challenge the order dated 4.2.1983 whereby the order was passed by the trial Court to proceed against him ex parte. 10. In this view of the matter, in my opinion, learned trial Court has not committed any error for which any interference is warranted by this Court. There is no force in this appeal. Hence, this appeal is dismissed.