Rajasthan High Court - Jaipur
Kailash Chand Meena vs Suresh Chand Yadav And Others on 28 March, 2017
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
JUDGMENT
S.B.Civil Misc. Appeal No. 3592/2011
Kailash Chand Meena S/o Kanhaiya Lal Meena, age 32 years R/o
1/184, Malviya Nagar, Jaipur.
----Claimant/Appellant
Versus
1. Suresh Yadav S/o Shiv Narayan, R/o House No. 1189
Jorawar Bhawan, Pertaniyon Ka Rasta, Jaipur.
2. Narendra Kumar Bhansali S/o Swaroop Chand Bhansali, R/o
D-402, Sarvanand Marg, Malviya Nagar, Jaipur.
3. Name of Insurance Company not known
4. Mukesh Kumar Mandawariya S/o Ghasi Lal by caste Raiger
R/o Adarsh Basti, Behind Government Railway Police (GRP)
Police Station Phulera, Jaipur. (Since Deceased).
5. Ram Ji Lal Meena S/o Sukhji Ram R/o 1, Sarvoday Colony,
Opposite Prakash Public, Tonk Phatak, Jaipur.
6. The New India Assurance Company Ltd. Anand Bhawan,
Sansar Chandra Road, Jaipur.
----Non-claimant/Respondents
Connected With
S.B. CIVIL CROSS OBJECTIONS No. 7/2016
Kailash Chand Meena S/o Kanhaiya Lal Meena, age 32 years R/o
1/184, Malviya Nagar, Jaipur.
----Claimant/Appellant
Versus
(2 of 21)
[ CMA-3592/2011]
1. Suresh Yadav S/o Shiv Narayan, R/o House No. 1189
Jorawar Bhawan, Pertaniyon Ka Rasta, Jaipur.
2. Narendra Kumar Bhansali S/o Swaroop Chand Bhansali, R/o
D-402, Sarvanand Marg, Malviya Nagar, Jaipur.
3. Name of Insurance Company unknown.
4. Mukesh Kumar Mandawariya S/o Ghasi Lal by caste Raiger
R/o Adarsh Basti, Behind Government Railway Police (GRP)
Police Station Phulera, Jaipur. (Since Deceased).
5. Ram Ji Lal Meena S/o Sukhji Ram R/o 1, Sarvoday Colony,
Opposite Prakash Public, Tonk Phatak, Jaipur.
6. The New India Assurance Company Ltd., Regional Office,
Nehru Place, Tonk Road, Jaipur (Raj.) through Regional
Manager.
Non-claimant/Respondents
S.B. Civil Misc. Appeal under Section 173
of Motor Vehicle Act, 1988 against
judgment and award dated 01/03/2011
passed by Presiding Officer, Special Court
(Communal Riots)/Motor Accident Claims
Tribunal, Jaipur in MAC No. 579/2008
(448/1997), whereby the Claim Petition
filed by the claimant/appellant was partly
allowed and award of Rs.14,89,060/-
alongwith interest @ 6% per annum was
passed, instead of Rs.20,60,000/- as
claimed.
_____________________________________________________
For Appellant : Mr. Virendra Agrawal with
Mr. Himanshu Agnihotri
For Respondent No. 2 : Mr. Sandeep Mathur with
Mr. B.C. Chiraniya
For Respondent No. 5 : Mr. Manoj Bhardwaj
For Respondent No. 6 : Mr. Raaj Pal Choudhary,
Insurance Company
(3 of 21)
[ CMA-3592/2011]
HON'BLE MR. JUSTICE DINESH CHANDRA SOMANI
Reportable
Date of Judgment :: 28/03/2017
The instant civil misc. appeal has been preferred by the
claimant/appellant for enhancement of compensation and liability
to pay compensation to be imposed upon all the non-
claimant/respondents jointly and severally, against the judgment
dated 01/03/2011 passed by Presiding Officer, Special Court
(Communal Riots)/Motor Accident Claims Tribunal, Jaipur
(hereinafter referred as to "the Tribunal") in MAC No. 579/2008
(448/1997), whereby the claim petition was partly accepted and
award of Rs.14,89,060/- alongwith interest @ 6% per annum was
passed instead of Rs.20,60,000/- as claimed in the claim petition.
After filing of the instant appeal, non-claimant/respondent
No. 2 Narendra Kumar Bhansali submitted cross-objections under
Order XLI Rule 22 of CPC against the impugned judgment and
award dated 01/03/2011 with prayer to quash and set aside the
finding of the impugned award passed against him. In alternative
it is also prayed that he may be allowed to defend the case on
merits which has been decided ex parte against him and for this
purpose the matter may be remanded back to the learned
Tribunal.
Material facts necessary for disposal of this appeal are that
the claimant/appellant filed a claim petition before the Tribunal
against the non-claimant/respondents for claiming compensation
(4 of 21)
[ CMA-3592/2011]
for the injuries sustained by him stating therein that on
intervening night of 04/03/1997 and 05/03/1997, the claimant
was going on a motorcycle bearing No. RJ 14 M 2359 from Railway
Station to Malviya Nagar, Jaipur which was driven by Mukesh
Kumar. When they reached near Imliwala Phatak, a Fiat Car
bearing registration No. RNV - 6918 came from opposite direction
and hit the motorcycle of the appellant. The car was driven by
Suresh Yadav rashly and negligently. It is also pleaded that
Mukesh Kumar also turned the motorcycle towards Imliwala
Phatak rashly and negligently. The accident occurred due to rash
and negligent driving of both the drivers of car and motorcycle. It
is also pleaded that the claimant sustained serious injuries and
became permanently disabled to the extent of 50.89%. At the
time of accident, the claimant was 32 years old and he was
working with Indian Oil Corporation Ltd., Jaipur. The accident
occurred due to rash and negligence of the drivers of both the
vehicles and prayed to award Rs.20,60,000/- as compensation
jointly and severally against non-claimant/respondents.
In the said claim petition, notices were ordered to be issued
to the non-claimants. Vakalatanamas were filed for non-
claimant/respondent Nos. 1 & 2 by Shri Jitendra Shrimali, for non-
claimant/respondent Nos. 4 & 5 by Shri Som Dutt and for
respondent No. 6 by Ram Avatar on 10/09/1997. Non-claimant
Nos. 1, 2, 4 & 5 did not file their reply to the claim petition. On
27/10/1997 none appeared for the non-claimant Nos. 1 & 2, thus
(5 of 21)
[ CMA-3592/2011]
ex-parte proceedings were drawn against them. On 08/12/1999
right of non-claimant Nos. 4 & 5 to file reply was closed.
Non-claimant No. 6 in it's reply admitted that the Motorcycle
No. RJ 14 M 2359 was insured with her and denied all the material
averments of the claim petition and pleaded that the accident has
occurred due to rash and negligent driving of car by non-claimant
No. 1, therefore, liability to pay compensation cannot be fastened
on driver of the vehicle insured with the answering non-
claimant/respondent. It was also pleaded that at the time of
accident the insured vehicle was driven by non-
claimant/respondent No. 4, who was not having valid and effective
driving licence which was in the knowledge of the owner of the
vehicle, thus, the insurance company is not liable to pay any
compensation and prayed to dismiss the claim petition against her.
From pleadings of the parties learned Tribunal framed as
many as five issues. Claimant appeared in the witness box as AW-
1 and exhibited 18 documents. The witness was cross-examined
by the insurance company alone. Non-claimant insurance
company did not produce any evidence. Thereafter, arguments
were heard and the claim petition was decided and award of
Rs.14,89,060/- with interest @ 6% per annum was passed only
against the driver and owner of the Fiat Car, holding that the
questioned accident was occurred due to sole negligence of driver
of the Fiat Car and no negligence attributed on the part of driver
of the motorcycle and as such the claim petition was ordered to be
dismissed against the driver, owner and insurer of the motorcycle.
(6 of 21)
[ CMA-3592/2011]
Being aggrieved with the impugned judgment and award passed
by the learned Tribunal, the claimant/appellant has preferred this
appeal.
Non-claimant/respondent No. 2 has submitted cross-
objections stating therein that the learned Tribunal has erred in
holding that the accident has occurred only because of negligence
of respondent No. 1. Whereas, it is clear case of negligent driving
of motorcycle driver, the respondent No. 4 as well as car driver,
the respondent No. 1 and it was a case of joint negligence of both
the drivers. Therefore, there was no justification to exonerate
respondent Nos. 4, 5 & 6 from the liability of paying compensation
to the claimant/appellant.
It is also submitted in the cross-objections that permanent
disability has been assessed as 50.89% which is not proved and it
has not come on record whether this disability is relating to only a
part of the body or relating to whole body. Learned Tribunal has
wrongly assessed the amount of compensation taking monthly
income of the claimant to be Rs.12,000/- and applying multiplier
of 18, whereas salary of the claimant was only Rs.4,521/- per
month and claimant did not suffer any loss of income due to
alleged disability as there was no reduction in his salary, rather it
has been increased. Learned Tribunal erroneously awarded
Rs.1,40,000/- also for the loss of leave.
It is also submitted in the cross-objections that the
impugned award has been passed against the respondent/cross-
objector ex-parte. In fact he did not receive any notice of the
(7 of 21)
[ CMA-3592/2011]
claim petition. When on 15/09/2015, the respondent cross-
objector received information from the employee of Tehsildar,
Sanganer regarding execution proceedings pending against him in
the office of SDO Sanganer, Jaipur. On making inquiry, it revealed
that the execution proceeding is in relation to the impugned
award. Thereafter, he obtained certified copies of the record and
came to know that the notice of the claim petition sent to him was
returned back unserved. However one vakalatnama was filed by
Shri Jitendra Shrimali, Advocate on his behalf and respondent No.
1. At this stage it was realized by him that after the accident, his
landlord Shri Manish Vaidya, who taken his car alongwith
respondent No. 1, had got his signatures on some blank forms of
vakalatnama and blank papers, to get the car released. Probably
these vakalatnamas signed by the cross-objector have been used
by his landlord Shri Manish Vaidya and respondent No. 1 without
his knowledge, despite the fact that he did not receive any notice
in the claim petition. It is also submitted that cross-objector did
not receive any notice of the appeal, yet vakalatnama has been
filed on his behalf in this appeal, which is without his knowledge.
Probably vakalatnamas earlier signed by him have been used by
respondent No. 1 in the same manner. Alongwith cross-objections,
an application for condonation of delay was also filed by the cross-
objector under Section 5 of the Limitation Act alongwith affidavit.
The claimant/appellant submitted his reply to application
under Section 5 of the Limitation Act denying the averments made
in the application stating therein that the notices were duly served
(8 of 21)
[ CMA-3592/2011]
upon the respondent/cross-objector during the course of the trial
before learned Tribunal, and thereafter vakalatnama duly signed
by the cross-objector was filed by his advocates on 10/09/1997
before the Tribunal. It is also submitted that in the appeal, Hon'ble
Court on 19/05/2012, was pleased to issue notices to respondents
which were duly served upon respondent/cross-objector on
07/12/2013. In execution proceedings also, the learned Motor
Vehicle Claims Tribunal issued notices to the cross-objector which
was also duly served upon him, but he did not choose to appear
before the Tribunal. Process server of Tehsildar on 07/09/2015,
visited the house of the respondent/cross-objector, where he and
his brother Devendra Bhansali refused to accept the notice.
Therefore, the fact of receiving information from the employee of
Tehsildar on 15/09/2015, as stated by the cross-objector, is false
and prayed to dismiss the application for condonation of delay
with cost.
Mr. Virendra Agrawwal, learned counsel for the appellant
contended that the claimant in para No. 28 of the claim petition
has pleaded that the accident occurred due to composite
negligence of driver of Motorcycle as well as driver of Fiat Car. The
reply to the claim petition was filed by respondent No. 6 New India
Assurance Company Ltd. alone, wherein, the factum of the
accident was not disputed and the factum of comprehensive
insurance coverage was admitted. The averment made in para No.
28 of the claim petition regarding negligence of driver of both the
vehicles was not specifically denied. It is also contended that the
(9 of 21)
[ CMA-3592/2011]
claimant became unconscious immediately after the accident and
remain hospitalized for 28 days. The FIR was lodged by Om
Prakash, brother of the claimant on 23/03/1996 and during
investigation, police seized Fiat Car and filed charge sheet against
driver of the car. It is further contended that the
claimant/appellant appeared in the witness box before the learned
Tribunal as AW-1 and marked 18 documents. The claimant
categorically stated that the driver of the motorcycle was at much
fault than the driver of the car and there is no rebuttal of this
evidence. Even then the learned Tribunal has committed error in
holding that accident in question occurred due to sole negligence
of driver of the car and there was no negligence on the part of
driver of the motorcycle.
Learned counsel for the appellant also contended that it is
crystal clear from the site plan Ex.-3 that driver of motorcycle took
the turn on the right side at the angle of ninety degree without
taking note of the fact that a car is coming with high speed from
opposite direction. Hence, driver of both the vehicles were
negligent and doctrine of "circumstances speak itself" is applicable
and it can be legally presumed that drivers of both the vehicles
were negligent. The claimant has option to file claim petition
against either of the wrong doer or against both the wrong doers
and both the wrong doers are jointly and severally liable to pay
compensation, therefore, the impugned judgment and award
dismissing the claim petition against the driver, owner and insurer
of the motorcycle is erroneous.
(10 of 21)
[ CMA-3592/2011]
Learned counsel for the appellant also contended that
learned Tribunal has awarded very meager amount of Rs.20,000/-
only, under the head of pain and suffering, though he is entitled
for Rs.2,00,000/- and further for Rs.2,00,000/- under the head of
loss of amenities of life. Learned counsel for the appellant further
contended that the owner of the car, respondent No. 2 has filed
cross-objections and came with a false case because it is clear
from the order of the learned Tribunal that vakalatnama was filed
by Mr. Jitendra Shrimali, Advocate on behalf of the owner before
the Tribunal on 10/09/1997 and as such it cannot be said that he
was not aware with the pendency of the claim petition.
Vakalatnama by the same advocate has been filed before Hon'ble
High Court on 15/02/2014, as such the pendency of the appeal
was also within the knowledge of the cross objector and his
averment that he has not authorized the advocate to file
vakalatnama, has no factual foundation.
Learned counsel for the appellant further contended that the
appeal has not been admitted as yet thus, the cross objections are
not maintainable. The owner has remedy to file appeal under
Section 173 of Motor Vehicles Act with pre requisite condition of
depositing 50% of the awarded amount or Rs.25,000/-, which
ever is less. As such the remedy of cross-objections is not
available to the owner, because he cannot bye pass mandatory
condition incorporated in Section 173 of the Act of 1988. The
learned counsel prayed to allow the appeal and liability of the
awarded amount may be imposed upon all the non-
(11 of 21)
[ CMA-3592/2011]
complaint/respondents jointly and severally and to dismiss the
cross-objections filed by the owner of the vehicle. In support of his
contentions, learned counsel for the appellant placed reliance on:-
A. 2015 ACJ 1441
Khenyei Vs. New India Assurance Co. Ltd. & Ors.
B. 2014(1) ACTC (SC) 270
Pawan Kumar & Anr. Vs. Harkishan Dass Mohal Lal & Ors.
C. 1995 ACJ 366
R.D. Hattangadi Vs. Pest Control (India) Pvt. Ltd. & Ors.
D. [2011] 6 SCC 321
Mahadev Govind Gharge & Ors. Vs. The Special Land
Acquisition Officer.
E. [2008] 3 RLW (Raj) 2345
East India Hotels (The) Ltd. Vs. Smt. Mahendra Kumari,
Since deceased, through her LR Jitendra & Anr.
F. 2005 ACJ 857
Lata Vs. United India Insurance Co. Ltd. & Ors.
G. 2003 ACJ 49
Abhilasha Bai Vs. Arvind Kumar & Ors.
H. (2003) 8 Supreme Court Cases 319
Ram Chandra Singh Vs. Savitri Devi & Ors.
I. AIR 1992 Supreme Court 1555
Smt. Shrisht Dhawan Vs. M/s. Shaw Brothers.
Per contra, while reiterating the grounds mentioned in cross-
objections, Mr. Sandeep Mathur and Mr. B.C. Chiraniya, learned
counsel for the respondent No. 2/cross-objector have submitted
that the present case is a case of composite negligence of both
(12 of 21)
[ CMA-3592/2011]
the drivers. There was no evidence in rebuttal to this evidence. In
such circumstances, there was no justification for the learned
Tribunal to exonerate non-claimant/respondent Nos. 4, 5 & 6 from
the liability to pay compensation to the claimant. Therefore, the
finding of learned Tribunal on issue No. 1 & 2 being contrary to the
facts and evidence, deserves to be quashed and set aside.
Mr. Sandeep Mathur also contended that it has not been
proved by the claimant that his permanent disability assessed as
50.89% relates to only a part of body or to whole body. Learned
Tribunal erred in calculating the loss of future income by taking
monthly income of the claimant as Rs.12,000/- per month and by
applying a multiplier of 18, whereas salary of the complainant was
only Rs.4,521/- per month at the time of accident. Learned
counsel also submitted that there was no reduction in salary of the
claimant after the accident, rather it has been increased.
Mr. Sandeep Mathur further contended that impugned award
has been passed against the respondent cross-objector ex-parte.
In fact he never received any notice of the claim petition. On
15/09/2015, the respondent cross-objector received information
from the employee of Tehsildar, Sanganer regarding execution
proceedings pending against him in the office of SDO. On inquiry,
it revealed that the execution proceedings are in relation to the
impugned award. Later on, he came to know that record of the
learned Tribunal has been called by this Hon'ble Court. Thereafter,
he obtained certified copies of the record and came to know that
the notice of the claim petition was never served upon him.
(13 of 21)
[ CMA-3592/2011]
However, one vakalatnama was filed by Mr. Jitendra Shrimali,
Advocate on his behalf with respondent No. 1. Learned counsel
further submitted that the respondent cross-objector did not
receive any notice of the appeal, yet vakalatnama has been filed
on his behalf and appearance on his behalf is again without his
knowledge. In this way, the cross-objector was neither having
knowledge of pendency of the claim petition, nor the knowledge
about this award and nor about the pendency of this appeal, prior
to 15/09/2015. Learned counsel prayed to quash and set aside the
findings of impugned award passed against cross-
objector/respondent and in alternative, prayed to allow the cross-
objector to defend the present case on merits which has been
decided ex-parte against him and for this purpose to remand the
matter to the learned Tribunal.
Mr. Monaj Bhardwaj, learned counsel for the respondent No.
5 has contended that the cross-objections filed by the respondent
No. 2 are barred by limitation. Learned counsel for the appellant
contended that the cross-objector/respondent No. 2 has played
fraud pleading wrong facts in his cross-objections.
Mr. Raaj Pal Choudhary, learned counsel for the respondent
No. 6, The New India Assurance Company Ltd. has supported the impugned judgment and award, and contended that the accident in question was occurred due to sole negligence of driver of the Fiat Car, which is evident from the FIR itself. After investigation, the police filed charge sheet against driver of the car only, holding him to be sole negligent for the accident. Learned counsel also (14 of 21) [ CMA-3592/2011] contended that there is no evidence of loss of income to the claimant due to the injuries sustained by him in the accident. Medical expenses have been already reimbursed to the claimant and he does not suffer from any statutory disability.
We have given anxious consideration, to the contentions of learned counsel for the parties and perused the record of the case.
First of all, we have to decide whether the remedy of cross- objections envisaged under Order XLI Rule 22 of CPC is available to the respondent/cross-objector or not?
It is contended by of learned counsel for the appellant that the owner has remedy to file appeal under Section 173 of the Motor Vehicles Act and before filing the appeal there is a pre requisite condition for depositing the amount, as such the remedy of cross-objections is not available to him because he cannot bye- pass the mandatory condition incorporated in Section 173 of the Motor Vehicles Act, 1988. It is also contended that provisions of cross-objections under Order XLI Rule 22 of CPC are not applicable to the appeal filed under Section 173 of the Act 1988, as the concerned Rules does not provide so. Learned counsel attracted our attention to Rule 10.28 of Rajasthan Motor Vehicle Rules, 1990 (hereinafter referred to as "the Rules of 1990") and submitted that provisions of Order XLI Rule 22 of CPC have not been made applicable to the claim proceedings and therefore, the cross-objections are liable to be dismissed, on this score alone.
We are not persuaded with the contention of learned counsel (15 of 21) [ CMA-3592/2011] for the appellant. Rule 10.28 of the Rules of 1990 makes provisions for procedure to be followed by the Claims Tribunal in holding inquiries. Certain Sections and provisions of First Schedule of the Code, 1908 envisaged in Rule 10.28, have been made applicable to the proceedings before the Claims Tribunal. For filing and hearing of appeals, provisions have been made in Rule 10.31 of Rules of 1990, which are as under:-
10.31. Form of Appeal and Contents of Memorandum.- (1) Every Appeal against the award of the Claims Tribunal shall be preferred in the form of a memorandum signed by the appellant or an Advocate or Attorney of the High Court duly authorised in that behalf by the applicant and presented to the High Court or to such officer as it appoints in this behalf. This memorandum shall be accompanied by a copy of the award.
(2) The memorandum shall set forth concisely and under distinct heads the grounds of objection to the award appealed from without any argument or narrative, and such grounds shall be numbered consecutively.
(3) Save as provided in sub-rule (1) and (2) the provisions of Order XXI and Order XLI in the First Schedule to the Code of Civil Procedure, 1908 (V of 1908) shall mutatis mutandis apply to appeals preferred to High Court under Section 173.
From the above provisions, it is crystal clear that provisions of Order XLI in the First Schedule to the Code of Civil Procedure, 1908 mutatis mutandis applies to appeals preferred to High Court under Section 173 of the Motor Vehicles Act, 1988.
In view of the discussions made above, the judgments relied upon by the appellant passed in Lata Vs. United India (16 of 21) [ CMA-3592/2011] Insurance Company Ltd. & Ors. (supra), Abhilasha Bai Vs. Arvind Kumar & Ors. (supra), are not of much help to the appellant and we are of the considered opinion that provisions of Rule 22 of Order XLI of CPC regarding filing of cross objections by the respondents, also applies in the appeals preferred under Section 173 of the Motor Vehicles Act, 1988.
It is also contended by learned counsel for the appellant that the cross objections filed by the respondent/cross-objector are barred by limitation, because the cross objections can be filed within 30 days from the date of hearing. It is argued that the appeal has still not been admitted. Moreover, the appellant came to know of the filing of appeal on 15/02/2014, when first vakalatnama was filed on his behalf before this Hon'ble Court and the cross objections have been filed by the respondent No. 2 on 16/10/2015, as such the cross objections cannot be considered being filed within the period of limitation, prescribed for.
The respondent/cross objector has come out with a case that he never received any notice of the claim petition, as also of the appeal preferred by the appellant before this Hon'ble Court and the vakalatnamas on his behalf were filed without his knowledge before the learned Tribunal and this Hon'ble Court. It is also contended that on 15/09/2015, the respondent/cross objector received information regarding execution proceedings pending against him and on inquiry it revealed that the execution proceeding is in relation to the impugned award. Thereafter, he obtained certified copies of the record and filed the cross (17 of 21) [ CMA-3592/2011] objections. An application for condonation of delay in filing the cross-objections is also filed by the respondent/cross-objector.
From perusal of record of the learned Tribunal, it reveals that on registration of the claim petition, it was ordered to issue summons to the non-claimants returnable by 06/06/1997, but the notices were not issued and the case was adjourned for 10/09/1997. Thereafter, summons to the non-claimants were issued for 10/09/1997 and sent by registered post with AD. Summons were served on non-claimant Nos. 1, 4, 5 & 6 but summon of non-claimant No. 2, Narendra Kumar (respondent/cross-objector herein) returned unserved by the postal authorities with remark that the addressee does not reside on the given address. It is pertinent to note that non-claimant No. 2, Narendra Kumar resides in House No. D-402, Sarvanand Marg, Malviya Nagar, Jaipur which is evident from the claim petition, memo of appeal and cross-objections also. Whereas, the summon was sent at D-432, Sarvanand Marg, Malviya Nagar, Jaipur. There is nothing on record to suggest that summon issued by the learned Tribunal was ever served on non-claimant Narendra Kumar or was ever tendered to him. On 10/09/1997, Mr. Jitendra Shrimali, Advocate filed vakalatnama on behalf of non-claimant Nos. 1 & 2, Mr. Som Dutt, Advocate filed vakalatnama on behalf of non-claimant Nos. 4 & 5 and Mr. Ram Avatar, Advocate filed vakalatnama for non-claimant No. 6 and sought adjournment to file reply. On next date 26/09/1997, the case was adjourned and on following date 27/10/1997, none appeared on behalf of non-
(18 of 21) [ CMA-3592/2011] claimant Nos. 1 & 2, thus, ex-parte proceedings were drawn against them.
From perusal of record of this Court, it reveals that notice to respondent No. 2 Narendra Kumar Bhansali was issued for 13/01/2014 and was sent for service to District Judge, Jaipur Metropolitan. Process server reported that he went on the given address on 07/12/2013 in search of Narendra Kumar, who was not found, but his brother met there who received copy of the notice and placed his signature on front page of other copy of notice. It also reveals that vakalatnama on behalf of respondent No. 2 Narendra Kumar was filed on 15/02/2014 by Mr. J.R. Tantiya, Advocate. In vakalatnama, name of Mr. Jitendra Shrimali, Advocate and Mr. Mukesh Choudhary are also mentioned alongwith Mr. J.R. Tantiya, Advocate. Thereafter, vakalatnama on behalf of the respondent No. 2 Narendra Kumar was filed by Mr. Ankit Sharma, Advocate on 19/09/2015 and by Mr. Sandeep Mathur on 21/10/2016.
The respondent No. 2/cross-objector has come out with a specific case that he did not receive any notice of the claim petition from the learned Tribunal, as also of the appeal preferred by the appellant before this Hon'ble Court and the vakalatnamas on his behalf were filed without his knowledge before the learned Tribunal and this Hon'ble Court. On 15/09/2015, the respondent/cross-objector received information through employee of Tehsildar regarding execution proceedings pending against him in the office of SDO Sanganer, Jaipur, and on inquirty it revealed (19 of 21) [ CMA-3592/2011] that the execution proceedings is in relation to the impugned award. Thereafter, he obtained certified copies of the record and filed the cross-objections. Respondent No. 2/cross-objector has also submitted that Shri Manish Vaidya who was landlord of the cross-objector and who had taken his car alongwith respondent No. 1, had got his signatures on some blank forms of vakalatnama and blank papers after the accident, to get the car released. Probably these vakalatnamas signed by the respondent/cross- objector have been used by Shri Manish Vaidya and respondent No. 1, without knowledge and information to the cross-objector, despite the fact that he never received any notice of the claim petition. Appearance on behalf of respondent/cross-objector in this appeal is again without his knowledge and probably vakalatnamas earlier signed by him, have been used again in the same manner. It is also contended by the respondent/cross-objector that he usually remains out of city and some time out of country in connection of his business for long duration. He is not having cordial relations with his brother and because of that, earlier he used to reside in rented house of Shri Manish Vaidya and later on shifted in Malviya Nagar, but some disputes between him and his brother remained continued. Because of these reasons, probably respondent No. 2/cross-objector could not get information of service of notice of the appeal upon his brother.
In [2011] 6 SCC 321 Mahadev Govind Gharge & Ors. Vs. The Special Land Acquisition Officer (supra), the respondents filed an appeal against the judgment of the Reference (20 of 21) [ CMA-3592/2011] Court to the High Court of Karnataka on 12/09/2001. The landowners were on a caveat. The High Court admitted the appeal on the same day and directed the office to post the same for hearing immediately after lower Court records (LCR) were received. On 19/11/2002, the appellants filed cross-objections before the High Court, under Order XLI Rule 22 of CPC, alongwith an application for condonation of delay of 404 days in the cross- objections. Hon'ble Supreme Court held that Courts have wide discretion to permit filing of the cross-objections even after the expiry of 30 days or for that matter any period which, is found to be just and proper by the Court. Thus, right of cross-objector is not taken away in absolute terms in case of such default. It is also held that provisions of the rule must receive a liberal construction and should be construed to achieve the ends of justice, advance the interest of public and to avoid multiplicity of litigation. The Court has to strike a balance between respective rights of the parties. It was further held that Appellate Court should normally grant extension of time or condone the delay beyond limitation period. This approach should be adopted even without aid of Section 5, Limitation Act, 1963.
In view of the peculiar facts of the present case as stated above and the law laid down by the Hon'ble Supreme Court, the delay occurred in filing the cross-objections by the respondent/cross-objector is thus, condoned.
From discussions made above, it is proved that the summon issued by the learned Tribunal was never served upon the (21 of 21) [ CMA-3592/2011] respondent/cross-objector nor was tendered to him and the Advocate, who filed vakalatnama on his behalf, did not defend the non-claimant respondent No. 2/cross-objector (herein) and never appeared before the learned Tribunal after two hearings. In these circumstances, non-claimant respondent No. 2/cross-objector could not submit his version and defend the claim petition before the learned Tribunal. Therefore, this is a fit case to be remanded back to the learned Tribunal so that the respondent No. 2/cross- objector may be allowed to defend the claim petition on merits which has been decided ex-parte against him. In these circumstances, other arguments raised by learned counsel for the parties does not require consideration at this stage.
Consequently, the cross-objections filed by the non- claimant/respondent no. 2 are allowed, impugned judgment and award passed by the learned Tribunal is set aside and the matter is remanded back to the learned Tribunal with direction to decide the claim petition afresh after affording reasonable opportunity of hearing to the parties to the claim petition. The appeal and the cross-objections are disposed of accordingly.
As the claim petition pertains to the year 1997, it is expected from the learned Tribunal to decide the claim petition expeditiously in accordance with law. Parties are directed to appear before the learned Tribunal on 18/04/2017.
(DINESH CHANDRA SOMANI)J. A.Kumar/