Research › Search › Judgment

Madhya Pradesh High Court · body

2020 DIGILAW 203 (MP)

Radha Dahiya v. Rajesh Kesharwani

2020-02-10

SUBODH ABHYANKAR

body2020
ORDER 1. Heard on admission. 2. This petition has been filed by the petitioner under Articled 227 of the Constitution of India against the order dated 4.1.2019 passed in MACC No. 369/2014 by the 7th Additional Motor Accident Claims Tribunal, Satna whereby the petitioner's application filed under Order 22 rule 3 of CPC to implead her and her minor children of the original claimant Rajendra Dahiya has been rejected. 3. Learned counsel for the petitioner has submitted that the accident in the present case took place on 12.8.2013 whereby the original claimant Rajendra Dahiya had suffered various injuries and even according to his claim application before the Claims Tribunal, he has averred having suffered various fractures and other injuries as a result of which he became bedridden and also suffered from bed sore. Learned counsel for the petitioner has further submitted that during the pendency of the aforesaid claim case, the original claimant Rajendra Dahiya passed away on 27.7.2018 and hence an application under Order 22 rule 3 of CPC was filed before the learned Claims Tribunal to bring his legal representatives on record, as the deceased is survived by his wife and two minor children but the same has been dismissed on the ground that no application for condonation of delay has been filed by the petitioner along with the application to bring the legal representatives on record. 4. It is further submitted that due to inadvertence learned counsel for the petitioner appearing before the Claims Tribunal could not file the application under section 5 of the Limitation Act, 1963 along with the application under Order 22 rule 3 of CPC, although the application was preferred after a period of around two months. It is further submitted that the learned Member of the Claims Tribunal erred in not considering the fact that the application for impleadment was filed on behalf of the widow of the deceased along with other two minor children, and as such the delay in filing the aforesaid application ought to have been allowed without insisting to file an application under section 5 of the Limitation Act, 1963. 5. Heard the counsel for the petitioner and perused the record. 6. On due consideration of the submissions made by the learned counsel for the petitioner and on perusal of the record this Court finds substance in the submissions of the learned counsel for the petitioner. 5. Heard the counsel for the petitioner and perused the record. 6. On due consideration of the submissions made by the learned counsel for the petitioner and on perusal of the record this Court finds substance in the submissions of the learned counsel for the petitioner. A perusal of the claim petition prima facie reveals that the original claimant Rajendra Dahiya had suffered injuries and was hospitalized from 12.8.2013 to 24.8.2013 and thereafter again he was admitted on 26.8.2013 where he had underwent treatment till 6.9.2013 and was bedridden. It is also averred that he was suffering from bed sore. In these facts and circumstances, this Court is of the considered opinion that the learned Member of the Claims Tribunal has wrongly dismissed the petitioner's application filed under Order 22 rule 3 of CPC on hyper technical ground for not filing the application for condonation of delay. This issue has already been considered by the Supreme Court in the case of K. Rudrappa v. Shivappa, (2004) 12 SCC 253 wherein it is stated that the provisions of Order 22 rule 3 of CPC has to be applied liberally and should not dismiss on hyper technical ground that no application for condonation of delay has been filed. The relevant paras of the same read as under: "10. Having heard learned counsel for the parties, in our opinion, the appeal deserves to be allowed. The case of the appellant before the District Court was that he was not aware of the pendency of the appeal filed by his father against the order passed by the Tahsildar. The father of the appellant died in June 1994 and the appellant came to know of the pendency of appeal somewhere in September 1994 when he received a communication from the advocate engaged by his father. Immediately, therefore, he contacted the said advocate, informed him regarding the death of his father and made an application. In such circumstances, in our opinion, the learned counsel for the appellant is right in submitting that a hyper technical view ought not to have been taken by the District Court in rejecting the application inter alia observing that no prayer for setting aside abatement of appeal was made and there was also no prayer for condonation of delay. In any case, when separate applications were made, they ought to have been allowed. In any case, when separate applications were made, they ought to have been allowed. In our opinion, such technical objections should not come in doing full and complete justice between the parties. In our considered opinion, the High Court ought to have set aside the order passed by the District Court and it ought to have granted the prayer of the appellant for bringing them on record as heirs and legal representatives of deceased Hanumanthappa and by directing the District Court to dispose of the appeal on its own merits. By not doing so, even the High Court has also not acted according to law. 11. Very recently, almost an identical case came up for consideration before us. In Ganeshprasad Badrinarayan Lahoti v. Sanjeevprasad Jamnaprasad Chourasiya the appellant heirs and legal representatives of deceased Ganeshprasad were not aware of an appeal filed by the deceased in the District Court, Jalgaon against the decree passed by the trial Court. When the appeal came up for hearing, the advocate engaged by the deceased wrote a letter to Ganeshprasad which was received by the appellants and immediately, they made an application for bringing them on record as heirs and legal representatives of the deceased. The application was rejected on the ground that there was no prayer for setting aside abatement of appeal nor for condonation of delay. The appellants, therefore, filed separate applications which were also rejected and the order was confirmed by the High Court. We had held that the applications ought to have been allowed by the Courts below. We, therefore, allowed the appeal, set aside the orders of the District Court as well as of the High Court and allowed the applications. In our opinion, the present case is directly covered by the ratio in the said decision and the orders impugned in the present appeal also deserve to be set aside." (Emphasis supplied) 7. As a result, petition stands allowed and the impugned order dated 4.1.2019 passed in MACC No. 369/2014 by the 7th Additional Motor Accident Claims Tribunal, Satna is hereby set aside. Consequently the petitioner's application filed under Order 22 rule 3 of CPC is allowed and the learned Member of the Claims Tribunal is requested to allow the petitioner to make necessary amendment in the claim petition and proceed further in accordance with law. No cost. ..................