Jammu & Kashmir High Court - Srinagar Bench
Abdul Salam Malik & Another vs National Insruance Company on 23 August, 2021
Bench: Chief Justice, Sanjay Dhar
Sr. No.01
HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT
SRINAGAR
CJ Court
LPA No.92/2021
CM No.4984/2021
CM No.4985/2021
ABDUL SALAM MALIK & ANOTHER ...APPELLANT(S)
Through:- Mr. Tariq M. Shah, Advocate.
Vs.
NATIONAL INSRUANCE COMPANY ...RESPONDENT(S)
Through:- None.
CORAM:-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE.
(JUDGMENT)(ORAL)
23.08.2021
Per Sanjay Dhar 'J'
1) Appellants have called in question order dated 31.05.2021 passed
by learned Writ Court, whereby writ petition filed by the appellants has been dismissed on the ground that the same has no scope.
2) The facts leading to the filing of the instant appeal are that one Ghulam Hassan Sheikh had filed a claim petition under Section 168 of Motor Vehicles Act before Motor Accident Claims Tribunal, Pulwama ("the Tribunal" for short hereinafter), claiming compensation on account of injuries suffered by him as a result of motor vehicular accident involving vehicle bearing No.JK13-0985 that took place on 09.07.2003.
MOHAMMAD ALTAF BHAT 2021.08.26 09:57 The appellant No.1 happened to be the owner and appellant No.2 I attest to the accuracy and integrity of this document LPA No.92/2021 Page |2
happened to be the driver of the offending vehicle whereas the respondent herein was the insurer of the vehicle in question and they were impleaded as respondents to the claim petition. The Tribunal, vide its award dated 26.03.2009, held the claimant/injured entitled to a compensation of Rs.4.00 lakhs along with interest @6% per annum and it was provided that the award shall be satisfied by the insurance company with a right to recover the said amount from the owner and driver of the offending vehicle, the appellants herein as it was found during trial of the case that the driver of the offending vehicle i.e., appellant No.2 herein was not holding a valid and effective driving licence as on the date of the accident. It is pertinent to mention that the owner and driver of the offending vehicle i.e., appellants herein, did not contest the claim petition and they were set exparte.
3) It appears that the insurance company after satisfying the award filed an execution petition against the appellants herein seeking recovery of the amount from them in terms of the award dated 26.03.2009. During the pendency of execution proceedings, the appellants filed an application seeking review of the award on the ground that the driver of the offending vehicle was holding a valid and effective driving licence as on the date of the accident and in spite of the insurance company having failed to prove the deliberate and intentional breach of policy conditions by the insured, the Tribunal has held the appellants liable to reimburse the awarded sum to the insurance company. MOHAMMAD ALTAF BHAT 2021.08.26 09:57 I attest to the accuracy and integrity of this document
LPA No.92/2021 Page |3
4) Vide order dated 24.12.2019, the Tribunal, in the absence of
appellants/judgment debtors, proceeded to direct the District Collector, Shopian, to recover the awarded sum from the appellants as arrears of land revenue. In the same order, the Tribunal observed that the appellants herein have not caused appearance before the Tribunal though they had filed an application under Order 47 Rule 1 of the Code of Civil Procedure. By a separate order passed on the same date, the Tribunal dismissed the application seeking review of the award filed by the appellants, in terms of a detailed order passed in the execution petition.
5) The aforesaid order came to be challenged by the appellants by way of a writ petition but the same has been dismissed by the learned Writ Court vide the impugned order observing that the writ petition does not have any scope.
6) The first and foremost question which fall for determination is as to whether a writ petition would lie against an order rejecting a review petition. The learned counsel for the appellants was, therefore, directed to address the Court on the said question/issue.
7) We have heard learned counsel for the parties and perused the record of the case.
8) It has been contended by learned counsel for the appellants that no appeal lies against an order of rejection of review petition and, as such, writ petition against such an order would be maintainable. MOHAMMAD ALTAF BHAT 2021.08.26 09:57 I attest to the accuracy and integrity of this document
LPA No.92/2021 Page |4
9) Order 47 Rule 7 of the Code of Civil Procedure is a complete
answer to the question as to under what circumstances an order passed in a review petition is appealable. It reads as under:
"7. Order of rejection not appealable. Objections to order granting application.-- (1) An order of the Court rejecting the application shall not be appealable; but an order granting the application may be objected to at once by an appeal from the order granting the application or in an appeal from the decree or order finally passed or made in the suit.
(2) where the application has been rejected in consequence of the failure of the applicant to appear, he may apply for an order to have the rejected application restored to file, and, where it is proved to the satisfaction of the Court that he was prevented by any sufficient cause from appearing when such application was called on for hearing, the Court shall order it to be restored to the file upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for hearing the same. (3) No order shall be made under sub-rule (2) unless notice of the application has been served on the opposite party."
10) From a perusal of the aforesaid provision, it is clear that an order of the Court rejecting a review petition is not appealable whereas an order granting the application is appealable. Sub-rule (2) of Rule 7, quoted above, is of seminal importance, inasmuch as it provides that when an application for review has been rejected because of failure of applicant to appear, he has the option of making an application to have the rejected application restored to file subject to fulfillment of conditions mentioned therein.
MOHAMMAD ALTAF BHAT 2021.08.26 09:57 I attest to the accuracy and integrity of this document
LPA No.92/2021 Page |5
11) As already noted, the review petition of the appellants was
dismissed by the Tribunal in terms of an order passed in the execution petition on 24.12.2019. In the said order it has been observed by the Tribunal that the review petitioners, after causing appearance on some dates, have abstained from the proceedings. This means that the review petition has been dismissed by the Tribunal for non-prosecution and not on merits. Therefore, it was open to the appellants to avail the remedy provided to them under Order 47 Rule 7(2) of the Code of Civil Procedure, which is an alternative and efficacious remedy. But without exhausting the said remedy, the appellants approached the High Court by way of a writ petition.
12) It is a settled law that High Court would be extremely reluctant to exercise its discretionary writ jurisdiction in a case where the writ petitioner has an alternative and efficacious remedy available to him. In the instant case, the appellants, as already discussed, did have the alternative and efficacious remedy of moving the Tribunal by way of an application under sub-rule (2) of Rule 7 of Order 47 CPC. Without exhausting the said remedy, they could not maintain the writ petition. The impugned order passed by the learned Writ Court is, therefore, in accordance with law.
13) For the foregoing reasons, we are of the view that there is no ground to interfere in the impugned order passed by the learned Writ Court. The appeal is found to be without any merit and the same is, accordingly, dismissed. The appellants are, however, at liberty to MOHAMMAD ALTAF BHAT 2021.08.26 09:57 I attest to the accuracy and integrity of this document LPA No.92/2021 Page |6 approach the appellate forum by filing an appeal against the final award or in the alternative they may approach the Tribunal either by way of an application for restoration of review petition for its disposal on merits or by way of an application for setting aside of the exparte award passed against them and in case any such application is made by the appellants before the Tribunal, the same shall be considered by the Tribunal in accordance with law.
(SANJAY DHAR) (PANKAJ MITHAL)
JUDGE CHIEF JUSTICE
SRINAGAR
23.08.2021
"Bhat Altaf, PS"
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
MOHAMMAD ALTAF BHAT
2021.08.26 09:57
I attest to the accuracy and
integrity of this document