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2021 DIGILAW 26 (JK)

Mushtaq Ahmad Lone v. Zubair Ahmad Bhat

2021-02-18

RAJNESH OSWAL

body2021
JUDGMENT : 1. The present petition has been filed for quashing the order dated 17.04.2017(herein after referred to as the order impugned) passed by the court of learned Additional District Judge (M.A.C.T.), Baramulla (hereinafter referred to as the Tribunal), by virtue of which review application filed by the respondent was allowed, thereby recalling the order dated 09.04.2015 and simultaneously the application for restoration of application for setting aside ex-parte award filed by the petitioner was also dismissed. The impugned order has been assailed on many grounds in the memo of the petition that the respondent should have resorted to appropriate remedy by challenging the said order before High Court and the Tribunal should have not gone in to the technicalities of limitation and rather should have dismissed the application for review. 2. Before going into the grounds of challenge it is necessary to have brief resume of facts. An ex-parte award came to be passed by the Tribunal against the petitioner and driver engaged by the petitioner on 31.12.2012. As soon as the petitioner came to know about the passing of ex-parte award, he filed an application for setting aside ex-parte award on the grounds those are not necessary for the disposal of the present petition. The said application was filed before the Tribunal on 09.02.2014 and as none appeared on behalf of the petitioner so the said application was dismissed for non-prosecution by the Tribunal on 29.12.2014. The petitioner filed an application for restoration of the application for setting aside ex-parte award on 31.01.2015. The Learned Tribunal vide order dated 09.04.2015 allowed the application on the premise that the said application was filed on the same date when the application for setting aside ex-parte award was dismissed. The application was allowed as the Tribunal wrongly assumed that the same was well within the period of limitation where as the fact remained that the said application for restoration was filed on 31.01.2015. 3. The application was allowed as the Tribunal wrongly assumed that the same was well within the period of limitation where as the fact remained that the said application for restoration was filed on 31.01.2015. 3. Thereafter respondent herein laid a motion before the Tribunal seeking review of the order dated 09.04.2015 on the ground that there was a delay in filing the application for setting ex-parte award as the said application was filed by the petitioner after thirty three days of the dismissal and the error committed by the Tribunal that the application for restoration was filed on the same date when the application for setting aside ex-parte award was dismissed, was brought to the notice of Tribunal. The said application was contested by the petitioner, however, the learned Tribunal vide order dated 17.04.2017 allowed the review application and simultaneously also dismissed the application for restoration filed by the petitioner. 4. Mr. Nissar Ahmad, counsel for the petitioner restricted his arguments to the contention that the learned Tribunal has committed the jurisdictional error as it had no jurisdiction to dismiss the application seeking restoration of the application for setting aside the ex-parte award while allowing the review application and it was obligatory on the part of Tribunal to re-hear the matter. 5. On the contrary, Mr. Irshad Ahmad, counsel for the respondent contended that Tribunal has rightly passed the order and the petitioner has been delaying the matter without any rhyme and reason. 6. Heard and considered. 7. Before appreciating the rival contentions raised on behalf of the parties, it would be appropriate to take note of the Rules 1 and 8 of Order XLVII CPC, that reads as under:- “1. Application for review of judgment. 6. Heard and considered. 7. Before appreciating the rival contentions raised on behalf of the parties, it would be appropriate to take note of the Rules 1 and 8 of Order XLVII CPC, that reads as under:- “1. Application for review of judgment. (1) Any person considering himself aggrieved- (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of the decree passed or order made again him, may apply for review of judgment to the Court which passed the decree or made the order.” “8. Registry of application granted, and order for re-hearing. When an application for review is granted, a note thereof shall be made in the register and the Court may at once re-hear the case or make such order in regard to the re-hearing as it thinks fit.” 8. It is evident that the learned Tribunal by mistake assumed that the application for restoration was filed on the same date when the application for setting aside ex-parte award was dismissed and on this wrong assumption only the Tribunal allowed the application being in time. Rather from record it is evident that the application for restoration of application for setting aside ex-parte award was filed on 31.01.2015 and not on 29.12.2014, when the application for setting aside ex-parte award was dismissed. Thus the Tribunal rightly allowed the application for review when the said error was brought to the notice of Tribunal. 9. A bare perusal of the Rule 8 of Order XLVII of CPC reveals that when an application for review is granted, the Court may at once re-hear the case or make such order in regard to re-hearing as it thinks fit. 9. A bare perusal of the Rule 8 of Order XLVII of CPC reveals that when an application for review is granted, the Court may at once re-hear the case or make such order in regard to re-hearing as it thinks fit. Thus re-hearing the matter afresh is pre-requisite for deciding the matter again and underlying object behind the rehearing is that no one should be condemned unheard. 10. From the record it is evident that even the respondent had not made any prayer for dismissal of the application for restoration in his application seeking review of the order dated 09.04.2015. However, the learned Tribunal while allowing the review also dismissed the application for restoration of application for setting aside ex-parte award. This Court is of the considered view that the Tribunal while allowing the application for review and simultaneously dismissing the application for restoration has exceeded its jurisdiction thereby denying the petitioner an opportunity of being heard while deciding the application for restoration afresh and it was obligatory on the part of the Tribunal to rehear the matter afresh and then the pass the appropriate order. This is a fit case in which this Court deems it proper to exercise its power under article 227 of constitution of India and as such set aside the order dated 17.04.2017 to the extent of dismissal of application for restoration of application for setting aside ex-parte award. 11. In view of what has been stated above, the learned Tribunal shall rehear the matter afresh and shall afford both the parties an opportunity of being heard while considering the matter afresh with regard to the application for restoration of application for setting aside ex-parte award. The learned Tribunal shall make all possible efforts to dispose of the said application as expeditiously as possible within a period of two months from the date copy of the order is furnished to the Tribunal. 12. Disposed of.