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2015 DIGILAW 666 (ORI)

Pramila Behera v. Narayan Pati

2015-12-01

B.R.SARANGI

body2015
JUDGMENT : B.R. Sarangi, J. 1. This application is directed against an order dated 09.04.2013 passed by the 1st MACT, Cuttack by which while setting aside the order of dismissal dated 21.12.2002 and restoring MAC No. 975/1996 to file, the MACT observed that the petitioner is not entitled to any interest on her claim till the date of restoration. 2. The factual matrix of the case, in hand, is that the petitioner being the mother of one Mami Behera, a girl child aged about 5 years, who died in a motor vehicle accident, filed an application before the Motor Accidents Claims Tribunal, Cuttack for grant of compensation under Section 166 of the Motor Vehicles Act, which was registered as Misc. Case No. 975 of 1996 and was posted to 21.12.2002, but the same was dismissed for default of the petitioner. The petitioner in order to restore the aforesaid claim petition filed M.J.C. 118 of 2005 under Order 9, Rule 4 of the Code of Civil Procedure with an application under Section5 of the Limitation Act. The said M.J.C. No. 118 of 2005 was taken up for hearing on 04.04.2013. The learned Tribunal by his order dated 09.04.2013 allowed the application and directed restoration of the original case to file, but while directing so, observed that the petitioner is not entitled to any interest on her claim till the date of restoration. 3. Mr. A.K. Otta, learned counsel for the petitioner states that the provisions contained in Order 9 Rule-4, C.P.C. does not contemplate any condition for restoration of the case to file. Section 171 of the MV Act, 1988 only empowers the learned Tribunal to grant additional interest while passing an award allowing the claim for compensation but the learned Tribunal while allowing restoration under Order-9 rule 4, by setting aside the order of dismissal dated 21.12.2002 has no jurisdiction to observe that payability of interest on the claim till the date of restoration which is not permissible under law. To substantiate his contention he has relied upon the judgment of this court in Achhuti @ Achyutananda Bal v. Payodhar Bal and others, 1992 (II) OLR 382(QB). 4. Mr. S. Khuntia, learned counsel for opposite party No. 1, the owner of the vehicle states that since it is the matter between the petitioner and the Court, he has nothing to reply. 5. Mr. 4. Mr. S. Khuntia, learned counsel for opposite party No. 1, the owner of the vehicle states that since it is the matter between the petitioner and the Court, he has nothing to reply. 5. Mr. S. Roy, learned counsel for opposite party No. 2 - Insurance Company states that for the laches of the petitioner if the Misc. Case No. 975 of 1996 had been dismissed for default on 21.12.2002 and the same has been restored to file considering the application filed under Order-9 Rule 4 C.P.C. and the application filed in M.J.C. No. 118 of 2005, for the period between the date of dismissal and the date of restoration, the opposite party is not liable to pay any interest on adjudication of the dispute. Therefore, the learned Tribunal is justified in passing the impugned order. 6. On the facts pleaded above it is to be examined Order-9 Rule-4 C.P.C. which reads as follows: "Plaintiff may bring fresh suit or Court may restore suit to file.-Where a suit is dismissed under Rule 2 or Rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit; or he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for such failure as is referred to in Rule 2, or for his non appearance, as the case may be, the Court shall make an Order setting aside the dismissal and shall appoint a day for proceeding with the suit. ORISSA HIGH COURT AMENDMENT Insert the following proviso to Rule 4 of Order-9 of the Code namely- "Provided that in cases where the defendant had entered into contest by filing his defence, no suit shall be restored without notice to him." 7. On perusal of the above mentioned provision, it is made clear that if a suit is dismissed under Order-9, Rule-2 or Rule-3, C.P.C., the plaintiff may bring a fresh suit or he may apply for an order to set aside the dismissal order passed by the court with a condition that he has satisfied the court that he had sufficient cause for none appearance. If the court is satisfied then the court shall make an order setting aside the dismissal and shall appoint a date for the proceeding with the suit. If the court is satisfied then the court shall make an order setting aside the dismissal and shall appoint a date for the proceeding with the suit. Nowhere the aforesaid provision contemplates that while restoring the application, the court can put any condition. Therefore, while setting aside the dismissal order passed on 21.12.2002 the Tribunal has committed an error by observing that the petitioner will not be entitled to any interest on the claim till the date of restoration. Such a condition is not permissible while considering the application for restoration under Order-9, Rule-4 C.P.C. 8. In view of such position the maxim, 'dura lex sed lex' is pressed into service to contend that law is to be applied proprio vigore and as such no words can be added or subtracted to interpret the provision under Order 9 Rule-4, C.P.C. and as such, while setting aside the dismissal order, the Court shall appoint a day for proceeding with the mater. In view of such position, the court cannot put a condition for restoration of the matter by invoking the jurisdiction under Order-9 Rule 4 C.P.C., rather the notice of restoration as well as the notice in the present writ petition to the opposite parties was not necessary as they had not appeared in the court below when the matter was dismissed for default and when the case was posted for taking step for issuance of notice to them. Therefore, when the provision under Order-9 Rule-4 is absolutely unambiguous, the Court could not have observed that the petitioner is not entitled to any interest on her claim till the date of restoration. 9. In Achhuti @ Achyutananda Bal (supra), this Court has clarified to the extent that notice is not necessary against the defendants who have been set ex-parte. Since the opposite parties have not entered appearance in the application filed for claim of compensation in Misc. Case No. 975 of 1996 and the matter was dismissed pursuant to the order passed on 21.12.2002, there is no need for issuance of notice to opposite parties, but this Court in compliance to the principles of natural justice, issued notice to opposite parties and in response to same, the opposite parties have entered appearance and participated in the proceeding itself. Section 171 of the MV Act only permits to grant interest while passing the award and that stage has not come to award interest in the proceeding and as such, the order passed by the learned MACT, Cuttack that the petitioner will not be entitled to any interest on her claim till the date of restoration is absolutely misconceived one. The application filed in the Tribunal is yet to be adjudicated and award of interest has to be passed by following due procedure and in terms of the provision contained under Section 171 of MV Act. Therefore, the observation of the tribunal while restoring the Misc. Case No. 975 of 1996 to file by setting aside the dismissal order dated 21.12.2002 that the petitioner will not be entitled to any interest on her claim till the date of restoration cannot sustain in the eye of law. Hence, the observation made in order dated 09.04.2013 that the petitioner will not be entitled any interest on her claim till the restoration is hereby quashed. Since the case is of the year 1996, the 1st MACT, Cuttack is directed to dispose of the Misc. Case No. 975 of 1996 as expeditiously as possible preferably within a period of six months by affording opportunity of hearing to the parties. 10. With the above observation and direction, the writ petition is allowed.