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Madhya Pradesh High Court · body

2010 DIGILAW 707 (MP)

Narendra v. Meerabai

2010-07-16

PRAKASH SHRIVASTAVA

body2010
ORDER 1. This appeal under Order 43 Rule 1 of the CPC has been filed against the order dated 24.6.06., passed by the Court of 1st Additional Distt. Judge Dhar. In Civil MJC No. 2/2006, whereby the trial Court has rejected the application under Order 9 Rule 13 of the CPC filed by the appellants. 2. One Daulatram, had died in an accident, which had taken place on 20.4.98, therefore, the respondents, who were the widow and minor children of the deceased had filed Claim Case No. 3/99, before the Motor Accident Claims Tribunal Dhar. The appellants are the driver and owner of the offending vehicle and were impleaded as respondents No.1 and 2 in the Claim Case. The summons of the claim case sent to the appellants had returned unserved with the endorsement that the appellants had refused to accept the summons, therefore, the Tribunal proceeded ex parte against the appellants on 7.4.99 and had passed the ex parte award dated 12th of May, 2000. The Tribunal awarded a sum of Rs. 2,14,000/- along with interest from the date of application. Since the offending vehicle belonging to the appellants was not insured, therefore, the liability to pay the compensation amount was fixed on the appellants. 3. The appellants on 19.12.05, filed an application under Order 9 Rule 13 of the CPC stating that they came to know about the ex parte award on 25.11.05. They were not served in the claim case, therefore, the ex parte award is liable to be set aside. The application was opposed by the respondents-Claimants and, the Claims Tribunal by the impugned order has rejected the application under Order 9 Rule 13 of the CPC on reaching to the conclusion that the appellants had refused to accept the summons in the claim case and that in any case, the appellants had knowledge about the ex parte award prior to 25.2.04, but they filed the application for setting aside the ex parte on 19.12.05 almost one year two months after the alleged knowledge. 4. Learned counsel appearing for the appellants submitted that the Tribunal has committed an error in rejecting the application under Order 9 Rule 13 of the CPC. He further submitted that the appellants are entitled to one opportunity to adduce evidence before the Tribunal. 5. 4. Learned counsel appearing for the appellants submitted that the Tribunal has committed an error in rejecting the application under Order 9 Rule 13 of the CPC. He further submitted that the appellants are entitled to one opportunity to adduce evidence before the Tribunal. 5. Learned counsel appearing for respondents submitted that the accident is of year 1998 and the respondents have not received any amount in pursuance to the award. He further submitted that the order of the Tribunal is a well reasoned order, which does not require any interference by this Court. 6. On perusal of the record, it is found that the summons in the claim case were sent to the appellants and the same were received back on 7.4.99, with the report that the appellant had refused to accept the summons. The Tribunal had proceeded ex parte thereafter. There is no reason to disbelieve the report that the appellants had not accepted the summons sent to them and had refused to accept it. 7. Even otherwise, it is found that after passing of the award, the Execution Case No. 15/01 was filed by the respondents in which the appellants had appeared on 25.2.04 and had sought time to file reply in the execution case. 8. A certified copy of the order-sheet dated 25.2.04 is on record. The order sheet dated 25.2.04 indicates that the appellants were personally present before the Executing Court on that date. Thus, no error Las been committed by the Tribunal in finding that the appellants had knowledge about the ex parte award prior to 25.2.04. Though the appellants had come to know about the ex parte award on 25.2.04, but they took no action for approaching the Tribunal for setting aside the award almost for a period of one year two months and they filed the application under Order 9 Rule 13 after an inordinate delay on 19.12.05. 9. The limitation for tiling the application for setting aside the ex parte decree in terms of Article 123 of the Limitation Act. 1963 is thirty days from the date of decree or where summons were not duly served from knowledge of the decree. In the present case, the application filed by the appellants was beyond the period of limitation from the date of decree as well as from the date of knowledge of decree. 10. 1963 is thirty days from the date of decree or where summons were not duly served from knowledge of the decree. In the present case, the application filed by the appellants was beyond the period of limitation from the date of decree as well as from the date of knowledge of decree. 10. It is also worth noting that the appellants had not approached the Tribunal with clean hands. They had made a false statement in their application that they had come to know about the ex parte award only on 25.11.05, whereas they had already appeared in the execution case on 25.2.04, therefore, they are not entitled for any relief by this Court. 11. Though the application for setting aside the ex parte decree is liberally treated, since in this case, the appellants had approached the Claims Tribunal with an inordinate delay of more than a year and they had approached the Tribunal by making a false statement, therefore, no relief can be granted to them. The record indicates that the bread earner of the family of the respondents-claimants had died in 1998 and till now the respondents have not received the amount awarded by the Tribunal. The plea which the appellants has taken is not a blow fide plea and apparently, their entire effort is to delay the payment. 12. In view of the aforesaid, there is no substance in the appeal and the same is accordingly dismissed.