State of U. P. and Another v. K. K. Tripathi and Another
2010-01-04
V.K.SHUKLA
body2010
DigiLaw.ai
V.K. Shukla, J.:- 1. Present writ petition has been filed by State of U.P. questioning the validity of the order dated 3.11.2009 passed by the Additional District Judge, Court No. 10, Kanpur Nagar in Misc. Case No. 2/74/08 wherein delay condonation application has been rejected. Further prayer has been made for issuance of writ in the nature of mandamus to recall exparte judgement and award dated 1.4.1995 and for deciding the claim petition on merits. 2. Brief background of the case is that respondent no.1 has filed Claim Petition under Section 166 of Motor Vehicle Act, 1988 claiming compensation of Rs. 2,75,000/- on account of injuries sustained by him in a motor accident which took place on 3.9.1989. Claim petition was registered as Motor Accident Case No. 67 of 1990 and therein opposite parties-petitioner appeared and file written statement. Said claim petition was initially dismissed in default on 27.9.1994. Petitioner submits that thereafter, they have no knowledge of notice of ex parte judgement dated 1.4.1995. On 4.1.2004 they acquired knowledge and then application was moved without any further delay on 28.2.2004 for recalling of the ex party judgment dated 1.4.1995, same was registered as Misc. Case No. 74 of 2004. In the said proceedings steps were not at all undertaken in spite of direction of Claim Tribunal and it was dismissed on 2.11.2007. Thereafter, an application was moved on 10.1.2008 and said application has been dismissed on 3.11.2009. At this juncture present writ petition has been filed. 3. Sri V.C. Dixit, Advocate, learned counsel for the petitioner contended with vehemence that valid and cogent reasons were there on account of which liberal view ought to have been taken in the matter and as such order which has been passed, same is liable to be set aside. 4. Countering the said submission, Sri S.N. Singh, Advocate appearing with Sri A.K. Singh, Advocate on the other hand contended that in the fact of the present case and looking into callous attitude of the petitioner, rightful view has been taken in the matter and the fact of the matter is that in execution proceedings, petitioners had entered appearance and had been participating, as such liberal view is not at all liable to be taken, as such writ petition deserves to be dismissed. 5.
5. After respective arguments have been advanced, undisputed factual position which is emerging in the present case is that claim petition has been filed way back in the year 3.9.1989 and more then 20 years period have already elapsed in the said proceeding. Petitioners had entered appearance by filing written statement. It is reflected from the record that said proceedings were dismissed for want of prosecution on 27.9.1994. Petitioners have proceeded to mention that they have no knowledge or information. Fact of the matter is that on 27.9.1994 when the claim petition was dismissed in default, on the same day in the presence of Pairokar of the petitioners, said order in question was recalled as it has been passed due to inadvertence. On 27.9.1994 orders were passed to proceed exparte and then on 1.2.1995 statement was got recorded and on 1.4.1995 claim petition was allowed. Execution of the said award had been undertaken and same had been on going, and in the said proceedings, petitioners had entered appearance and had been participating. Thereafter, application was moved on 28.2.2004 for recalling of the said exparte judgment. In the said proceedings, notices were issued and in spite of specific order being there, no steps whatsoever had been undertaken and then it was rejected on 3.11.2007. Thereafter, on 10.1.2008 an application was moved supported by section 5 application for setting aside of the said order. Additional District Judge has taken into account the conduct of the petitioners and the way and manner in which proceedings have been conducted and thereafter has found that there was no sufficient cause for recalling of the said order, and has consequently proceeded to reject the delay condonation application. 6. In the fact of the case, it cannot be said that view which have been taken by the court of the Additional District Judge Court No. 10 suffers from any infirmity, rather looking into the conduct of the petitioners and the way and manner in which proceedings have been undertaken by the petitioners, this court refuses to exercise its authority of judicial review. 7. Consequently, writ petition is dismissed. 8. No order as to cost.