Rajasthan High Court - Jaipur
Vikram Singh Verma vs Smt. Kashmiri Devi And Ors. on 8 September, 1999
Equivalent citations: 2(2000)ACC112, 2000(2)WLC314
JUDGMENT Shiv Kumar Sharma, J.
1. The principal question that requires my consideration in the instant miscellaneous appeal is as to whether civil miscellaneous appeal under Order 43, Rule 1, C.P.C. is maintainable against the order of Commissioner Workmen's Compensation, declined to set aside the ex parte award under Order 9, Rule 13, C.P.C.
2. Brief resume of the facts is that ex parte award came to be passed vide order dated September 16,1996 by the Commissioner Workmen's Compensation Bharatpur (in short the Commissioner) against the appellant Vikram Singh Verma (for short the appellant). The appellant moved an application under Order 9, Rule 13, C.P.C. for setting aside the ex parte award on the ground that no notice was served upon him and from the perusal of the record it came to the notice of the appellant that an endorsement was made by the postman on the envelope to the effect that the appellant refused to take the delivery of the registered envelope. It was averred in the application that the appellant was continuously ill with effect from February 25, 1996 to May 11,1996 and was taking medical treatment in Agra, therefore, during this period the question of service of any notice did not arise at all. The postman in village Patholi is the resident of the same village and he is having a political enmity with the appellant and, therefore, without tendering the notice made a false endorsement on the envelope. It was further pleaded that the deceased Sobran was never in the employment of the appellant and the appellant is not the employer of deceased Sobran. Deceased Sobran's date of birth was 1.2.1981 and, therefore, at the age of 14 years question of employment did not arise. The appellant came to know about the ex parte judgment on September 16,1997 from the Tehsil and immediately he took steps for getting the certified copy for setting aside the ex parte judgment. The learned Commissioner dismissed the application on the ground that he was not having jurisdiction to decide any application under Order 9, Rule 13, CPC vide the impugned order.
3. Mr. Gopal Garg, learned Counsel appearing for the appellant canvassed that the provisions of Order 9, Rule 13, CPC are applicable in the proceedings before the Commissioner in view of Rule 41 of the Workmen's Compensation Rules, 1924 (in short the Rules of 1924). The appeal is also competent under Order 43, Rule 1, CPC against the impugned order.
4. On the other hand, Mr. D.C. Gupta, learned Counsel appearing for the respondents contended that no appeal is maintainable under Order 43, Rule 1, C.P.C. The only course which is open to the appellant is to file appeal under Section 30 of the Workmen's Compensation Act, 1923 (for short the Act). Reliance was placed on Praveen Industries and Ors. v. Sri Banawar Singh II (1990) ACC 180 (DB), Bashir Khan v. Ranger Social Vaniki and Ors. RLR 1994 (1) page 27, and Krishna Lime Works v. Presiding Officer 1988 (2) WLN 598.
5. I have reflected over the rival submissions and carefully scanned the material on record. Rule 41 of the Workmen's Compensation Rules, 1924, provides thus:
41. Certain provisions of Code of Civil Procedure, 1908 to apply--Save as otherwise expressly provided in the Act or these Rules, the following provisions of the First Schedule to the Code of Civil Procedure, 1908 namely those contained in Order V, Rules 9 to 13 and 15 to 30; Order IX; Order XIII, Rules 3 to 10; Order XVI, Rules 2 to 21; Order XVII and Order XXIII, Rules 1 and 2 shall apply to proceedings before Commissioners, insofar as they may be applicable thereto:
Provided that xxx xxx xxx.
6. A look at the aforesaid provision demonstrates that provisions contained in Order 9, Rule 13 of the Code of Civil Procedure are applicable in the proceedings before the Commissioner. Therefore, an application for setting aside the ex parte judgment could be filed before the Commissioner. The only question which requires my consideration is whether appeal lies to this Court under Order 43, Rule 1, C.P.C. against the order made by the Commissioner dismissing the application under Order 9, Rule 13, C.P.C. As is evident from the perusal of Rule 41 of the Rules of 1924 the provisions contained in Order 43, Rule 1, CPC are not applicable. Therefore, the intention of the Legislature in enacting the aforesaid provision was to prevent a party to file miscellaneous appeal under Order 43, Rule 1, CPC. Therefore, in my considered opinion in view of Rule 41 of the Rules of 1924, appeal under Order 43, Rule 1, CPC is not competent. My view finds support from Praveen Industries and Ors. v. Shri Banawar Singh (supra), wherein the Division Bench of Karnataka High Court indicated thus:
The only provision regarding appeal against the orders made by the Workmen's Compensation Authority is found in Section 30 of the Workmen's Compensation Act. Under Clause (a) of Section 30(1) an appeal lies to this Court from the orders of the Commissioner awarding compensation. Therefore, it is clear that if an order awarding compensation has been made by the Workmen's Compensation Authority and thereafter an application was made under Order IX, Rule 13 praying for setting aside that order on the ground that the appellant had been placed ex parte without justification and that application is dismissed, the only course open to the party is to prefer an appeal against the order awarding compensation as provided in Section 30(1)(a) of the Act. But no appeal can be filed against an order dismissing the application for setting aside the order as there is no provision for filing such appeal under Section 30 of the Act and under Rule 41, the provisions of Order 43, Rule 1, CPC are not made applicable.
7. Even the revision petition under Section 115, CPC is not maintainable against the order of Commissioner Workmen's Compensation as is held by the Division Bench of this Court in Bashir Khan v. Ranger Social Vaniki and Ors. (supra). It was indicated by the Division Bench that revision under Section 115, CPC is not maintainable against the order passed by the Commissioner Workmen's Compensation as the Commissioner was not a Court subordinate to the High Court for the purpose of Section 115, CPC.
8. For the aforesaid reasons, I do not see any ground of interference in the impugned order. I hold that instant miscellaneous appeal is not maintainable under Order 43, Rule 1, CPC.
9. The appeal accordingly fails and is hereby dismissed. No costs.