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2014 DIGILAW 3795 (ALL)

Divya Bhasin v. Javitri Devi

2014-12-19

SUNITA AGARWAL

body2014
JUDGMENT Sunita Agarwal, J. 1. Heard Sri Ajay Bhanot, learned counsel for the petitioner and Sri Ram Ji Singh Patel holding brief of Sri Onkar Nath for respondent Nos. 1 to 3. No one appeared on behalf of respondent No. 4-insurance company. 2. The petitioner was owner of the vehicle which was involved in the accident out of which claim petition namely, MAC No. 131 of 2001 arose. She was arrayed as opposite party No. 1 in the aforesaid claim petition. The petitioner has contested the claim by filing a written statement. She has denied the incident and the claim instituted by the claimants. The insurance company also filed written statement countering the claim of the claimants. The award was passed by the Special Judge(NDPS Act/MACT Act), Etah on 21.5.2003 and the petitioner/opposite party No. 1 was held liable for payment of compensation. 3. An application under Order IX Rule 13 CPC read with application under Section 5 of the Limitation Act was filed by the petitioner to set aside the award dated 21.5.2003 on the ground that she was prevented by sufficient cause from appearing on the date fixed in the court and an ex-parte award was passed taking recourse to provision of Order XVII Rule 2 CPC. 4. The application under Order IX Rule 13 CPC was rejected by the Court below on the ground that it was not an ex-parte award rather the claim petition was decided on merits after consideration of stand taken by the petitioner-opposite party No. 1 in the written statement filed by her. As the petitioner, who was owner of the vehicle has failed to prove that the driver was having a valid and effective driving licence on the date and time of accident, the issue No. 2 as to whether the driver was having a valid licence on the date of accident was decided against the Petitioner and it was found that the petitioner has violated the terms and conditions of the insurance policy and hence was liable to pay the compensation. Assailing the order dated 4.10.2005 passed by the court below rejecting application under Order IX Rule 13 CPC, as also the award dated 21.5.2003 stating to be an ex-parte award, the present writ petition has been filed. 5. Assailing the order dated 4.10.2005 passed by the court below rejecting application under Order IX Rule 13 CPC, as also the award dated 21.5.2003 stating to be an ex-parte award, the present writ petition has been filed. 5. Learned counsel for the petitioner submits that the Court below has committed illegality in treating the award having been passed on merits and not an ex-parte award taking recourse to provisions of order XVII Rule 2 CPC. 6. In the present case, 8.5.2003 was the date fixed for evidence of the petitioner-opposite party No. 1 but she could not appear before the court below on the date fixed on account of illness. Cogent evidence in the form of medical certificate was filed by the petitioner- opposite party No. 1 before the court below in order to establish that the petitioner was prevented by sufficient cause from appearing on the date fixed when the case was called out for hearing and it was clearly established that absence of petitioner-opposite party No. 1 was not intentional. The Court below has committee illegality in ignoring the same. The Court below has accepted bona fide of the petitioner and also authenticity of the medical certificate and has recorded a finding that the certificate submitted by the petitioner was sufficient for condoning delay in filing the application. However, the said documents were not considered for condoning the absence of the petitioner beyond her control on the dates fixed i.e. 8.5.2003 and 21.5.2003. A patent illegality has been committed in recording the finding that the petitioner remain intentionally absent on the aforesaid dates before the Court below. This approach of Court below is self destructive. For appreciation of evidence, presence of parties of the litigation is mandatory and the Court below has illegally rejected the application on the ground that the counsel for the petitioner-opposite party No. 1 did not appear and argued the case on the date fixed and hence the award could not be treated as an ex-parte award. Further submission of learned counsel for the petitioner is that pre-requisite of Order XVII Rule 2CPC did not exist in the present case. 7. Further submission of learned counsel for the petitioner is that pre-requisite of Order XVII Rule 2CPC did not exist in the present case. 7. Explanation to Rule 2 of Order XVII CPC provides that where evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any date to which the hearing is adjourned, the Court may, in its discretion, proceed with the case in absence of such party. In the present case, 8.5.2003 was fixed for adducing evidence by the petitioner. However, no evidence or substantial portion of evidence could be led by the petitioner before or on the said date on account of her illness and as such situation as contemplated in Explanation to Rule 2 of Order XVII of CPC did not arise. Hence, the decision to proceed ex-parte by the court below was bad and cannot be sustained in the eye of law. 8. Learned counsel for respondent Nos. to and 3 refuted the submission of learned counsel for the petitioner and submitted that the petitioner was well aware of the date fixed i.e. 8.5.2003. It is not a case where the petitioner was not informed of the date fixed in the case. Moreover, written statement was filed by the petitioner before the Court below and a list of documents namely, paper No. 14-Ga was filed on 29.4.2002. It is categorically recorded in the award while recording the finding on issue No. 2 that a blank list of documents was filed by the petitioner on 29.4.2002. As no document was filed hence an application was filed on behalf of the insurance company to call for the driving licence of the driver so that the same could be verified. On the said application, a request was made by the petitioner-owner for grant of time to produce the driver's driving licence. An application to this effect was filed on 27.2.2003 which was allowed and the date fixed was 17.4.2003. Another application was filed on 17.4.2003 for adjournment on the ground that the driver could not appear, as such 28.4.2003 was fixed. Again on the said date, adjournment was sought and 8.5.2003 was fixed. On 8.5.2003, neither the petitioner appeared before the Court below nor any evidence was filed and as such her evidence was closed, arguments were heard and 21.5.2003 was fixed for judgment. Again on the said date, adjournment was sought and 8.5.2003 was fixed. On 8.5.2003, neither the petitioner appeared before the Court below nor any evidence was filed and as such her evidence was closed, arguments were heard and 21.5.2003 was fixed for judgment. On 21.5.2003, the judgment was passed after consideration of submission of the petitioner-owner in the written statement. It was held by the Court below that the owner had neither disclosed the name of driver nor any evidence was filed to establish that the driver was having a valid and effective driving licence on the date of accident. The plea taken by the learned counsel for the petitioner of illness was not found entertainable for setting aside the award which was passed on merits. The application under Order IX Rule 13 CPC filed by the petitioner was found misconceived and hence was rightly rejected. 9. Having heard learned counsel for the parties and perused the record, this Court finds that the award was passed on merits on 21.5.2003. The petitioner-owner sought adjournment for producing the driving licence but had failed to do so. Adjournment was granted on the request of the petitioner on three dates. On 8.5.2003, neither petitioner nor her counsel appeared before the Court below and hence evidence of the petitioner was closed and the matter was heard on merits. A perusal of the award shows that the court below has considered the claim on merits. The Court below has not committed any illegality in proceeding on the dates fixed in the absence of the petitioner. As it was not an ex-parte award, the application under Order IX Rule 13 was rightly rejected. There is no illegality in the finding in the award passed by the Court below and, therefore, the ground of illness taken by the petitioner though could be a good ground for condoning the delay in filing the application, however, as the petitioner was well aware of the date fixed i.e. 8.5.2003, the medical certificate to show that the petitioner could not appear on account of circumstances beyond her control, could not be entertained for recall of an award passed on merits. The order dated 4.10.2005 passed by the Court below rejecting the application under Order IX Rule13 CPC is clearly justified in the facts and circumstances of the present case. The order dated 4.10.2005 passed by the Court below rejecting the application under Order IX Rule13 CPC is clearly justified in the facts and circumstances of the present case. There is no merit in the submissions of the learned counsel for the petitioner. 10. The writ petition is devoid of merits and hence dismissed.