Allahabad High Court
Smt. Shivani Shah And Another vs Sanjay Nanda And 2 Others on 20 October, 2020
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 50 Case :- FIRST APPEAL FROM ORDER DEFECTIVE No. - 507 of 2020 Appellant :- Smt. Shivani Shah And Another Respondent :- Sanjay Nanda And 2 Others Counsel for Appellant :- A.K. Mishra,Sati Shanker Tripathi Hon'ble Vivek Kumar Birla,J.
Re: Civil Misc. Delay Condonation Application No. 1 of 2020 Heard learned counsel for the applicants-appellants.
This is claimants' appeal.
Stamp Reporter has reported delay of 1751 days in filing the appeal on the date when the appeal was reported.
It is submitted that the delay is bonafide as an application under Order 9 Rule 9 CPC read with Section 151 CPC was moved on 23.10.2015 for recall of ex-parte judgment dated 24.9.2015 well within time. It is submitted that ultimately the application was got dismissed as withdrawn on 7.9.2020 on the ground that the same was filed on the misconceived legal advice and thereafter, present appeal has been filed. Submission, therefore, is that there was no deliberate delay on the part of the claimants-appellants.
I have considered the submissions and have perused the record.
Paragraphs 3 and 4 of the affidavit filed in support of delay condonation application are quoted as under:-
"3. That after the impugned judgment and order dated 24.9.2015 was passed, an application under Order-9 Rule 9 read with Section 151 C.P.C. was moved on 23.10.2015 for recall of the ex-parte judgment dated 24.9.2015 well within time and the aforesaid application was marked as Misc. Suit No. 330/2015.
4. That the aforesaid Misc. Application filed by the appellants/claimants for recall of ex-parte order dated 24.9.2015 was finally decided by the learned Addl. District and Sessions Judge, Court No. 8, Mathura in Misc. Case No. 330/2015 (Shivani Shah Vs. Sanjay Nanda) in respect of MAC No. 59/2011 vide order dated 7.9.2020 on the ground that the matter pertains to the Motor Accident Claim, hence the provision contained in Order 9 Rule 9 r/w Section 151 C.P.C. is not applicable in the present case and further stated that the counsel for the claimant admitted that the application Under Order 9 Rule 9 r/w Section 151 Cr.P.C. was filed on wrong advice of the counsel."
For the purpose of considering huge delay I have also perused the impugned award. In the impugned award itself in paragraph 11 it has been clearly mentioned that the claim petition was filed in the year 2011 and no one on behalf of the claimants is appearing for a very long time. On perusal of issue no. 1, which is on factum of accident it further transpires that the first information report was lodged against an unidentified vehicle and no evidence was produced by the claimants. In the written statement filed by the driver it was mentioned that the vehicle Martuti Car, dashed the truck from behind and as such there was no negligence on the part of the truck driver. In such view of the matter, it was held that the accident had not taken place from due negligence of the truck driver. No documents showing the involvement of the truck i.e. charge-sheet, site plan etc. were placed before the Tribunal.
In such view of the matter, I find that there had been a delay by the claimants at every stage of the proceedings and they even did not take care to press their application filed before the Tribunal for recall of the ex-parte judgment even if they did not wish to press the recall application for a long period of five years.
In the totality of circumstances, this Court is of the opinion that the delay has not been satisfactorily explained by the applicants.
In such view of the matter, delay condonation application stands rejected.
Re: F.A.F.O. Since the delay condonation application has been rejected by me by order of date, consequently, the present appeal also stands dismissed.
Order Date :- 20.10.2020 Lalit Shukla