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2023 DIGILAW 1096 (RAJ)

Manish Kumar Mishra, S/o Shri Gauri Shankar v. Badri Bai, W/o. Shri Chhitar Lal

2023-05-12

CHANDRA KUMAR SONGARA, MANINDRA MOHAN SHRIVASTAVA

body2023
JUDGMENT : 1. Vide order dated 31.01.2014, while hearing all these appeals, it was noted by the learned Single Judge that though orders have been passed on 05.09.2013/06.09.2013 directing that the writ petition be treated as Civil Miscellaneous Appeal, reference has been made to three orders passed by learned Single Judges of this Court in the cases of Vikram Singh Verma Versus Kashmiri Devi & Others, decided on 08.09.1999 [2000(2)WLC 314], Mangla Jat Versus Raju, decided on 01.02.2001 [2001(1)WLC 698] & Bharat Lal Versus Sriom and Others (S.B. Civil Miscellaneous Appeal No. 474 of 1998, decided on 24.11.2000, 2001(4)WLC498), wherein, it has been consistently held that against an order passed by Motor Accident Claims Tribunal under Order 9 Rule 13 CPC, Civil Miscellaneous Appeal under Order 43 Rule 1 CPC is not maintainable. Learned Single Judge also referred the judgment of the Karnataka High Court in the case of National Insurance Co. Ltd. Vs. Huligemma & Others, decided on 02.03.2005 [2005 (2) TAC 933], wherein also similar view has been taken as has been held consistently in the judgments of the aforesaid cases. Therefore, the case has been referred to Larger Bench to consider the issue regarding maintainability of Civil Miscellaneous Appeal. 2. These appeals have been preferred against the order dated 29.01.2013 passed by the Motor Accident Claims Tribunal rejecting an application for setting aside ex parte award. 3. A Tribunal constituted under the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’) is governed and regulated by the provisions contained in the Act as also the provisions contained in rules framed in exercise of the powers conferred under the Act, known as The Rajasthan Motor Vehicles Rules, 1990 (hereinafter referred to as ‘the Rules of 1990). Rule 10.27 and 10.28 provide for limited applicability of the provisions contained in the Civil Procedure Code insofar as the rules before the Tribunal are concerned. The aforesaid two Rules are reproduced below:- “10.27. Power vested in Civil Court which may be exercised by Claims Tribunal. - (1) Without prejudice to the provisions of section 169,- (a) every claims Tribunal, may exercise all or any of the powers vested in a Civil Court under the following provisions of the Code of Civil Procedure, 1908, in so far as they may be applicable, namely:- Sections 30. - (1) Without prejudice to the provisions of section 169,- (a) every claims Tribunal, may exercise all or any of the powers vested in a Civil Court under the following provisions of the Code of Civil Procedure, 1908, in so far as they may be applicable, namely:- Sections 30. 32, 34, 35(a), 75(a) & (c), 76, 77, 94, 95, 132, 133, 144, 145, 147, 148, 149, 151, 152 & 153. (b) and subject to the provisions of the section 174. (2) For purpose other than those specified in Sub-rule (1), the Claims Tribunal may exercise all or any of the powers of Civil Court as may be necessary in any case for discharging its functions under the Act and these rules. 10.28. Procedure to be followed by Claims Tribunal in holding enquiries. - (1) The following provisions of the Code of Civil Procedure, 1908 shall, so far as may be, applied to the proceedings before every Claims Tribunal, namely:- (a) Sections 28, 79 and 82. (b) In the First Schedule, Order V, rules 9 to 13 (both inclusive) and 15 to 30 (both inclusive). Order VI rules 4, 5, 7, 10, 11, 16, 17 and 18 and Order V, II-rule 10, Order VIII, rules 2 to 5 (both inclusive), 9 & 10; Order IX, Order XI, rules 12 to 15 (both inclusive) 17 to 21 (both inclusive) and 23; Order XII, rules 1, 2, 3A, 4, 7 and 9, Order XIII, rules 3 to 10 (both inclusive) Order XIV, rules 2 and 5, Order XVI, order XVII, Order XVIII, rules 1 to 34 (both inclusive), 10 to 20 (both inclusive) and 15 to 18 (both inclusive) Order XIX, Order XX, rules 1 to 3 (both inclusive), 8, 11 and 20, Order XXI, Order XXII, rules 1 to 7 (both inclusive), and 9; Order XXIII, rules 1 to 3 (both inclusive); Order XXIV, Order XXVI, rules 1 to 8 (both inclusive) and 15 to 18 (both inclusive), Order XXVII, Order XVIII, Order XXIX, Order XXX rules 1 to 15 (both inclusive). Order XXXVI) rules 1 to 10 (both inclusive), and Order XXXIX, rules 1 and 3 to 5 (both inclusive). In so far as the Act and these rules make no provision or make insufficient provision, the relevant provisions of the Code of Civil Procedure, 1908 shall so far as may be, apply to the proceedings before the Claims Tribunal.” 4. Order XXXVI) rules 1 to 10 (both inclusive), and Order XXXIX, rules 1 and 3 to 5 (both inclusive). In so far as the Act and these rules make no provision or make insufficient provision, the relevant provisions of the Code of Civil Procedure, 1908 shall so far as may be, apply to the proceedings before the Claims Tribunal.” 4. A perusal of the aforesaid provisions would show that though some of the provisions including provision contained in Order 9 of CPC has been made applicable in proceedings before the Motor Accident Claims Tribunal constituted under the Act, provisions contained in Order 43 CPC have not been specifically made applicable. 5. Therefore, the question which arises for consideration is whether against an order refusing to set aside ex parte award, an appeal would lie to the High Court by invoking provisions contained under Order 43 Rule 1 (d) of the CPC. 6. It is well settled legal position that remedy of appeal has to be expressly provided under statue and it cannot be implied. In this regard, the decision of the Hon’ble Supreme Court in the case of Competition Commission of India Versus Steel Authority of India Ltd. and Others [ (2010) 10 SCC 744 ], is relevant. The observations made by the Hon’ble Supreme Court in the aforesaid case is reproduces below:- “47. In Super Cassettes Industries Ltd. V. State of U.P., (2009) 10 SCC 531 , the State of U.P. through its Collector had preferred an appeal under Section 13 of the Act against an order passed by the authority cancelling the notice which had been issued under Section 9(2) of the Act. The contention raised was that the said order amounted to an order being passed under Section 11(2) of the Act. An order passed under Section 11(2) of the Act in furtherance of the statement prepared by the tenure-holder was final and conclusive and could not be called in question in any court of law. 48. The Court while interpreting the provisions of Section 13(1) held that it is only the specific order passed under Section 11(2) and Section 12 of the Act which could be appealed against and while applying its rule held as under: (Super Cassettes Industries Ltd. V. State of U.P., (2009) 10 SCC 531 ), SCC pp. 538 & 540, paras 23 & 31) "23. 538 & 540, paras 23 & 31) "23. It is well known that the right of appeal is not a natural or inherent right. It cannot be assumed to exist unless expressly provided for by statute. Being a creature of statute, remedy of appeal must be legitimately traceable to the statutory provisions....... xxx xxx xxx xxx 31. Section 13 provides a right of appeal to a party aggrieved by an order under Sub-section (2) of Section 11 or Section 12 and no other. In other words, any order passed by the Prescribed Authority other than the order under Sub-Section (2) of Section 11 or Section 12 is not appealable. From any reckoning, the order dated 17-12-2003 is neither an order under Sub-section (2) of Section 11 nor an order under Section 12. The Act, 1960 does not make the order of the Prescribed Authority canceling the notice issued under Section 9(2) amenable to appeal. Such order does not fall within the ambit of Section 13. 50. The principle of “appeal being a statutory right and no party having a right to file appeal except in accordance with the prescribed procedure” is now well settled. The right of appeal may be lost to a party in face of relevant provisions of law in appropriate cases. It being a creation of a statute, legislature has to decide whether the right to appeal should be unconditional or conditional. Such law does not violate Article 14 of the Constitution. An appeal to be maintainable must have its genesis in the authority of law. Reference may be made to M. Ramnarain (P) Ltd. v. State Trading Corpn. of India Ltd., [ (1983) 3 SCC 75 ] and Gujarat Agro Industries Co. Ltd. v. Municipal Corpn. of the City of Ahmedabad [ (1999) 4 SCC 468 ]. 51. Right of appeal is neither a natural nor an inherent right vested in a party. It is a substantive statutory right regulated by the statute creating it. Kondiba Dagadu Kadam v. Savitribai Sopan Gujar [ (1999) 3 SCC 722 ] and Kashmir Singh v. Harnam Singh [ (2008) 12 SCC 796 ] may be referred to on this point. Thus, it is evident that the right to appeal is not a right which can be assumed by logical analysis much less by exercise of inherent jurisdiction. It essentially should be provided by the law in force. Thus, it is evident that the right to appeal is not a right which can be assumed by logical analysis much less by exercise of inherent jurisdiction. It essentially should be provided by the law in force. In absence of any specific provision creating a right in a party to file an appeal, such right can neither be assumed nor inferred in favour of the party.” 7. Applying the aforesaid settled legal position, as many as four judgments have been rendered by learned Single Judges of this Court to hold that in the absence of there being any express provision of an appeal against an order refusing to set aside ex parte award, provisions contained under Order 43 Rule 1 (d) CPC could not be invoked and, therefore, no appeal would be maintainable. In the case of Vikram Singh Verma Versus Kashmiri Devi & Others (supra), learned Single Judge of this Court while dealing with an issue with regard to maintainability of Civil Miscellaneous Appeal under Order 43 Rule 1 (d) CPC against an order refusing to set aside an ex parte award passed by the Commissioner under Workmen’s Compensation Act held that though provision of Order 9 CPC are made applicable before the Commissioner, Workmen’s Compensation, in the absence of there being any express provision of appeal by invoking Order 43 CPC, it was held that appeal would not be maintainable. 8. In another judgment of this Court in the case of Mangla Jat Versus Raju (supra) while dealing with an appeal preferred against an order rejecting application for setting aside ex parte award under Order 9 Rule 13 CPC, arising from an award passed under the provisions of the Motor Vehicles Act, 1988 by the Motor Accident Claims Tribunal, relied upon the decision in the case of Vikram Singh Verma Versus Kashmiri Devi & Others (supra) to hold that Civil Miscellaneous Appeal would not be maintainable in the absence of there being any provision. The aforesaid view taken by the learned Single Judge has been consistently followed in the cases of Bharat Lal Versus Sriom and Others (supra) and Data Ram and Another Versus Afsar (S.B. Civil Miscellaneous Appeal No. 266 of 1997, decided on 27.07.2005). 9. The aforesaid view taken by the learned Single Judge has been consistently followed in the cases of Bharat Lal Versus Sriom and Others (supra) and Data Ram and Another Versus Afsar (S.B. Civil Miscellaneous Appeal No. 266 of 1997, decided on 27.07.2005). 9. A Division Bench of the Karnataka High Court in the case of Parveen Industries Versus Banawar Singh (M.F.A. No. 2149/1989, decided on 13.12.1989), has also held that in the absence of there being any provision in the applicable rules, provisions of Order 43 Rule 1 (d) CPC could not be invoked to exercise a right of appeal against an order refusing to set aside an ex parte award. Furthermore, a Division Bench of Allahabad High Court has also taken the same view in the case of Om Prakash and Others Versus Rukmini Devi and Others, decided on 20.04.1982. 10. In view of the aforesaid consideration and the consistent view taken by this Court and the other High Courts, we are of the firm view that against an order passed by the Motor Accident Claims Tribunal refusing to set aside an ex parte award, Order 43 Rule 1 (d) CPC could not be invoked to exercise a right of appeal in the absence of there being any express provision in that regard provided under the Rules of 1990. 11. Accordingly, we hold that these appeals are not maintainable under the law. 12. Learned counsel for the appellants would submit that as the appellant has no other remedy of appeal under any other law for the time being in force including the Motor Vehicles Act, 1988 and the Rules framed thereunder, he may be permitted to invoke supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 13. The prayer appears to be reasonable because neither there is any express remedy of appeal provided under the law for the time being in force against an order passed by the Motor Accident Claims Tribunal rejecting an application refusing to set aside ex parte award, nor provisions of 115 C.P.C. could be made applicable because the Motor Accident Claims Tribunal is not a Court for the purposes of Section 115 of C.P.C. Therefore, the only remedy available to the appellant would be to invoke supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 14. We, accordingly, hold so. 15. 14. We, accordingly, hold so. 15. Let all these appeals be registered as petitions under Article 227 of the Constitution of India and listed before appropriate Bench for consideration on merits.