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2014 DIGILAW 3253 (ALL)

KAILASHI DEVI v. DEVESH KUMARI

2014-10-31

MAHESH CHANDRA TRIPATHI

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JUDGMENT Hon’ble Mahesh Chandra Tripathi, J.—Heard learned counsel for the petitioners. Since a simple legal issue is involved in the matter, I do not propose to issue notice to the respondents. By means of the present writ petition, the petitioners have prayed for quashing the order dated 9.10.2014 passed by the Tribunal by which the application under Order 9 Rule 9 of Civil Procedure Code (hereinafter referred as “CPC”) was rejected. 2. Brief facts give rise to the present writ petition are as follows : The husband of the petitioner No. 1, namely, Shri Hansraj Singh died on 16.6.2005 due to an accident caused by the Ambassador Car No. DL-01-CH-0189 belongs to respondent No. 1. Thereafter petitioners had filed a motor accident claim petition No. 311 of 2005 before Motor Accident Claim Tribunal, Etah on 1.8.2005. It appears from the record that in the said claim petition documentary as well as oral evidence were led by the claimants and had been adduced before the learned Tribunal on 21.7.2009 and thereafter, file has been put up for arguments and learned Tribunal vide order dated 28.9.2007 had proceeded ex parte against the defendants. It also appears from the record that the respondent No. 3 had moved a recall application dated 12.10.2009 for recalling the order dated 28.9.2007, which was allowed on the cost of Rs. 125/-. As alleged by the petitioners, the said recall order had been passed without giving any notice or information to the petitioners by the learned Tribunal vide order dated 23.4.2010. 3. It has also been alleged in the writ petition that neither the counsel for the petitioners nor the Tribunal had send any notice to the claimants/informant and proceeded ex parte against the petitioners and without considering the documentary as well as oral evidence of the petitioners, rejecting the claim of the claimants/petitioners vide an order dated 21.12.2010 on the ground that the claimants/petitioners could not prove their case. It has also been alleged that the said order had come into the knowledge of the petitioners on 6.12.2012 through counsel Sri Mahendra Pratap Singh. Thereafter, the petitioners had immediately moved recall application on 10.4.2012 under Order 9 Rule 9 of CPC for setting aside the ex parte judgment and order dated 21.12.2010. 4. It has also been averred that the petitioners have also filed delay condonation application alongwith said application. Thereafter, the petitioners had immediately moved recall application on 10.4.2012 under Order 9 Rule 9 of CPC for setting aside the ex parte judgment and order dated 21.12.2010. 4. It has also been averred that the petitioners have also filed delay condonation application alongwith said application. Learned Tribunal vide order dated 9.10.2014 had rejected the application moved under Order 9 Rule 9 CPC, the same is being assailed by means of the present writ petition on various grounds. 5. Learned counsel for the petitioners has precisely argued that the order impugned dated 9.10.2014 passed by the learned Tribunal is ex facie, illegal, perverse and cannot be sustained on the ground that while rejecting the application, the learned Tribunal has held that the petitioners had wrongly filed the recall application under Order 9 Rule 9 CPC whereas they had to move the said application under Order 9 Rule 13 CPC and he further makes submission that sufficient cause were shown by moving the delay condonation application for setting aside, the ex parte order dated 21.12.2010, but the learned Tribunal has not considered the same and rejected the valuable case of the petitioners merely on the ground of technicality. 6. I have heard learned counsel for the petitioners and perused the record. In the present matter, the petitioners had filed the motor accident claim petition No. 311 of 2005 before the motor accident claim tribunal, Etah and the learned Tribunal vide order dated 28.9.2007 had directed the matter may be proceeded ex parte against the defendants. It appears from the record that the respondent No. 3 had moved a recall application which was allowed by the learned Tribunal vide its order dated 23.4.2010. The said claim petition was rejected by the learned Tribunal vide its order dated 21.12.2010. It is apparent from the record that as per the date of knowledge i.e. 6.4.2012, the petitioners had immediately moved recall application under Order 9 Rule 9 of CPC for setting aside the ex parte judgment and order dated 21.12.2010. While rejecting the said claim, the learned Tribunal held that the application was not maintainable under Order 9 Rule 9 whereas it ought to be moved under Order 9 Rule 13 CPC. 7. For resolving the present controversy, it would be appropriate to reproduce the provisions of Order 9 Rule 8, Order 9 Rule 9 and Order 9 Rule 13 of CPC : “8. 7. For resolving the present controversy, it would be appropriate to reproduce the provisions of Order 9 Rule 8, Order 9 Rule 9 and Order 9 Rule 13 of CPC : “8. Procedure where defendants only appears.—Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder. 9. Decree against plaintiff by default bars fresh suit.—(1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit and shall appoint a day for proceeding with the suit. 13. Setting aside decree ex parte against defendants.—In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside, and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.” 8. It is admitted situation that the petitioners had moved the claim petition No. 311 of 2005 which was finally rejected by the learned Tribunal vide its order dated 21.12.2010 whereas the petitioners while moving delay condonation application had taken plea that limitation may be counted from the date of knowledge i.e. 6.4.2012, and only thereafter had moved an application on 10.4.2012 without any further dealy under Order 9 Rule 9 CPC for setting aside the ex parte judgment order dated 21.12.2010. If the petitioners were claimant and instituted the claim petition, then they had every right to move application under Order 9 Rule 9, which clearly provides that where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit and shall appoint a day for proceeding with the suit. The Order 9 Rule 8 also clearly provides that where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed. Thus it is apparent from the record that the petitioners had moved an application being as a claimants/plaintiffs in the matter and ex parte award was passed against them. Therefore, they had rightly moved an application under Order 9 Rule 9 CPC, as such, the order impugned cannot be sustained. In view of above, without entering into the merits of the case, the order impugned order dated 9.10.2014 cannot be sustained and is accordingly set aside. The matter is relegated to the Tribunal to take appropriate decision in the matter, in the light of observation made above strictly in accordance with law. The said exercise may be completed within two months time from the date of production of a certified copy of this order before him. With the aforesaid observation and direction, the writ petition is allowed. ——————