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2023 DIGILAW 3 (HP)

Meena Ram v. Vinay Nanda

2023-01-02

SATYEN VAIDYA

body2023
JUDGMENT : SATYEN VAIDYA, J. 1. FAO (WCA) No. 279 of 2012 was filed before this Court under Section 30 of Employees Compensation Act by the claimant against award dated 08.06.2012, passed by Commissioner under the Act ibid in Case No. 9-2/2011 of 2008. 2. The employer Sh. Vinay Nanda was impleaded as respondent No. 1 and insurer was impleaded as respondent No. 2. 3. This Court decided FAO (WCA) No. 279 of 2012, vide judgment dated 08.10.2021. 4. The employer Sh. Vinay Nanda (applicant herein) approached this Court by filing an application CMP No. 10231 of 2022 on 07.07.2022 with a prayer to recall the judgment passed by this Court in FAO (WCA) No. 279 of 2012, on the ground that he had no notice of the pendency of appeal before this Court as he was never served with any notice and hence was not able to put in appearance. Applicant, however withdrew CMP No. 10231 of 2022 on 23.09.2022. 5. On 23.09.2012, applicant filed another application CMP No. 14634 of 2022 under Order 9 Rule 13 of the Code of Civil Procedure (for short ‘the Code’) with a prayer to set aside ex-parte judgment dated 08.10.2021, passed by this Court in FAO (WCA) No. 279 of 2012. Another application CMP(M) No. 1376 of 2022 was also filed by the applicant on the same day i.e. 23.09.2022 under Section 5 of the Limitation Act, with a prayer to condone the delay in filing the application under Order 9 Rule 13 of the CPC. Both these applications are being decided by this order. 6. Rule 21 of Order 41 of the Code, provides for a remedy to a respondent, when the appeal has been heard ex-parte, to apply to the Appellate Court to rehear the appeal on satisfying the Court that either the notice was not duly served upon him or he was prevented by sufficient cause from appearing when the appeal was called on for hearing. On being satisfied on any of the above grounds, the Court is then mandated to rehear the appeal. The applicant instead of seeking aforesaid remedy, has approached this Court under Order 9 Rule 13 of the Code, which is not the proper remedy for him. In order to avoid technicalities, the application filed by the applicant is being treated hereafter as being filed under Order 41 Rule 21 of the Code. 7. The applicant instead of seeking aforesaid remedy, has approached this Court under Order 9 Rule 13 of the Code, which is not the proper remedy for him. In order to avoid technicalities, the application filed by the applicant is being treated hereafter as being filed under Order 41 Rule 21 of the Code. 7. Applicant has prayed for condonation of delay on the ground that he was not aware about the passing of judgment dated 08.10.2021 in FAO (WCA) No. 279 of 2012 till 03.03.2022, when he received a notice from this Court in Review Petition No. 127/2021, whereby the review of aforesaid judgment has been sought by the insurer. 8. The limitation, under Article 123 of the Limitation Act, to file an application under Order 41 Rule 21 of the Code is 30 days from the date of decree and when the summons or notice was not duly served, from the date of knowledge of passing of such decree. Assuming that applicant had no notice or knowledge of the pendency of appeal or its decision, he was obliged to apply to this Court for rehearing the appeal within 30 days from the date of knowledge dated 03.03.2022. The application has been filed on 23.09.2022. 9. The only explanation for delay in filing the application as rendered by the applicant is that after attaining the knowledge about the passing of judgment dated 08.10.2021, he had applied for the copies of records of the case from the Registry of this Court on 28.03.2022, which were supplied to him on 25.06.2022. The reason, so assigned, cannot be held to be a sufficient cause for not preferring the application within time. Firstly, the applicant having acquired knowledge on 03.03.2022 had applied for the copies of records at leisure on 28.03.2022 and secondly, had waited till the supply of the copies to him for knowing the details contained therein. There is no explanation as to why sufficient urgency was not shown by the applicant as he had an easy option to inspect the records in accordance with the applicable rules. 10. Though, the applicant has not pleaded so , but this Court takes notice of the fact that the first application i.e. CMP No. 10231 of 2022 was filed by applicant on 07.07.2022 seeking recalling of the judgment dated 08.10.2021. 10. Though, the applicant has not pleaded so , but this Court takes notice of the fact that the first application i.e. CMP No. 10231 of 2022 was filed by applicant on 07.07.2022 seeking recalling of the judgment dated 08.10.2021. Based on the reasons, as noticed above, even the application filed on 07.07.2022 cannot be said to be within limitation. 11. The reason of applying for copies of the records and then waiting for its supply, cannot be held to be cause much less sufficient cause for delay in filing the application. Such cause was generated by the applicant by his own mistake. He cannot be allowed to take benefit thereof. 12. It is also trite that the merits of the plea for rehearing the appeal, in appropriate cases may persuade the Court to grant the prayer for condonation of delay. Notwithstanding the fact that this Court has not found sufficient cause in the plea of applicant for condonation of delay, the merits of the plea for rehearing the appeal are being examined hereafter, only for aforesaid purpose. 13. Out of the two grounds mentioned in Order 41 Rule 21 of the Code, applicant has placed reliance on the ground that he was never served in FAO (WCA) No. 279 of 2012. It is averred in the application i.e. CMP No. 14634 of 2022 that the notice in the appeal was served upon one Smt. Reena Nanda, who was not related to the applicant. The plea, so raised by the applicant, has been found to be contrary to the records. A notice was issued to the applicant in FAO (WCA) No. 279 of 2012 in pursuance to order dated 17.07.2012, passed by the Court. Record reveals that the notice was issued to the applicant on the address as mentioned in the memorandum of parties available with the grounds of appeal. The date of appearance mentioned in the notice was 24.09.2012. There is an endorsement on the right top margin of the copy of notice that the same was issued through registered post with acknowledgement due. The acknowledgment was received by the Registry of this Court duly signed by the applicant. After waiting for representation on behalf of the applicant, it was recorded by the Registry that the applicant stood served. 14. The acknowledgment was received by the Registry of this Court duly signed by the applicant. After waiting for representation on behalf of the applicant, it was recorded by the Registry that the applicant stood served. 14. It is not the case of the applicant that the acknowledgement remitted by the Department of Posts to the Court did not bear his signature. It is also not his case that the address on the notice was not his correct address. 15. The plea regarding receipt of notice by one Ms. Reena Nanda cannot improve the case of applicant for the reason that the notice bearing report of Process Serving Agency to the effect that the notice was received by Ms. Reena Nanda, Sister-in-law of applicant, was issued during the pendency of the appeal to notify the fact that the matter was proposed to be listed before Lok Adalat on 29.03.2014. As noticed above, the applicant had been duly served with a notice of hearing of appeal for 24.09.2012 and despite service he had failed to put in appearance. His absence from the proceedings of appeal continued thereafter, and finally ,the judgment dated 01.10.2021 was passed in absence of applicant. 16. Applicant has also raised a plea that the presence of learned counsel for the parties were intermingled or wrongly recorded on few dates during the proceedings of appeal. This discrepancy had kept in only after 06.11.2018. Applicant cannot take any benefit of such discrepancy as he has not shown any prejudice having been caused to him as a result thereof. The fact remains that despite having been served with a notice for appearance on 24.09.2012, applicant had chosen not to appear. 17. Thus, applicant has failed to satisfy the Court on his plea that the notice was not duly served upon him. Accordingly, the applicant cannot succeed in his plea under Order 41 Rule 21 of the Code for rehearing of the appeal. Both the applications deserve dismissal and are accordingly, dismissed.