Madhya Pradesh High Court
Jameela Begum And Ors. vs Union Of India (Uoi) And Anr. on 13 September, 2001
Equivalent citations: II(2002)ACC300
ORDER V.K. Agrawal, J.
1. By the impugned order, in all these appeals application of the claimants/appellants under Rule 18(2) of the Railway Claims Tribunal (Procedure) Rules, 1989 (hereinafter referred to as 'Rules' for short), for restoration of claim petitions filed before the Railway Claims Tribunal, were dismissed. Since common questions are involved, in all the appeals, they are being disposed of by this common order.
2. Undisputably, the petitioner Khudabaksh filed several claim petitions, under the Indian Railways Act, claiming damages before the Railway Claims Tribunal, Bhopal. Notice of the said claim petitions were also served on the respondents. However, the said claim petitions were dismissed on account of non-prosecution in the absence of the petitioner and his Counsel. O.A. No. 240/ 1992, O.A. No. 241/1992, O.A. No. 242/1992, O.A. No. 245/1992 and O.A. No. 246/1992 were dismissed on 1.3.1996, while O.A. No. 244/1992 and O.A. No. 243/1992 were so dismissed on 27.2.1996. Application for restoration in O.A. No. 244/1992 was filed on 17.5.1996, while applications for restoration of remaining original applications as above, were filed on 4.4.1996. The said applications were accompanied by an application under Rule 44 of the Rules, for condonation of delay in filing the said applications. Both the above applications were accompanied by affidavits of claimant/petitioner.
3. The respondents filed reply to the applications for restoration as above, denying the allegations without making any specific statement therein contesting the averments made in the said petitions for restoration. No reply to the application for condonation of delay filed under Rule 44 of the Rules, appears to have been filed.
4. The learned Tribunal has observed in the impugned order that the petitioner has failed to show that there was sufficient cause for his absence or his Counsel, or that there was any reason for filing the application beyond the period of limitation prescribed under Rule 18(2) of the Rules. Hence, prayer of the petitioner to condone the delay in filing the application for restoration and to restore the claim cases and rehearing thereof was disallowed. The original claimant/petitioner Khuda Bux died during pendency of the appeal and his Legal Representatives have been substituted in his place.
5. Learned Counsel for the appellant submitted that the appellant-petitioner being preoccupied with the treatment of his brother was unable to attend the Claims Tribunal and remained absent. It has been submitted that the brother of the claimant/petitioner was seriously ill and suffered from lung cancer. It was submitted that the absence was not mala fide and the delay in filing the applications for restoration was not inordinate. It was also submitted that the petitioner had furnished affidavit in support of his petitions which should have been taken into consideration and relied upon by the Tribunal especially in view of the fact that the respondents in their replies did not raise any specific denial of pleas regarding the absence or delay as averred by the claimant/petitioner. It has further been submitted that as the delay and absence was not deliberate it should normally have been condoned and the applications for restoration should have been allowed.
6. Learned Counsel for respondents however supported the impugned order and has strenuously opposed the prayer for restoration. It has been submitted that the appellant-petitioner was obliged to place on record the medical certificates and other documents to show that his contentions were bona fide, which he failed to do. It was, therefore, submitted that since the petitioner failed to place on record satisfactory evidence and material to show that he was in fact preoccupied with the treatment of his brother, his prayers for condonation of delay and restoration of claim petition was rightly rejected.
7. It is noticed that the claimant/petitioner alleged in the applications filed by him that, since he received a message about the serious ailment of his brother, he had to rush to his brother Hazi Abdul Haque and had taken him to Bombay for his treatment. The treatment as above continued for a long time and the petitioner, therefore, could not appear in the claim cases when they were taken up for hearing on the dates of hearing arid were dismissed on account of his nonappearance.
8. It is noticed that an affidavit in support of both the applications i.e. one under Rule 18(2) of the Rules for restoration as well as under Rule 44 of the Rules, for condonation of delay has been filed by the claimant/petitioner. It also appears that the reply of petitioner's application for restoration, filed on behalf of the respondents is rather cryptic and except for mere vague denial of averments made by the petitioner no specific plea controverting the averments in the said petitions were raised in the reply. Moreover, no reply of the application under Rule 44 of the Rules for condonation of delay was filed on behalf of the respondents. It is also clear that except regarding O.A. No. 243/1992, the delay in filing the application for restoration in the remaining claim cases was only of four days, while in case of O.A. No. 244/1992 the application for restoration was filed with a delay of about 45 days.
9. In view of the above, it is clear from the averments made in the petition supported by affidavit of the claimant/petitioner, that he could not appear in the claim cases on account of ailment of his brother whom he had to take for treatment. Though it is true that the petitioner would have been well advised to file documents of treatment etc., in support of his case. However, even if the said documents as above were not filed by him, that by itself would not be a sufficient ground to disallow his prayer for restoration, in view of the affidavits and the averments raised by him, which remained virtually uncontroverted. It is also noticed that the petitioner has filed certain documents in these appeals indicating that his brother in fact was suffering from lung cancer. The circumstances of the case indicate that the absence of the petitioner or delay in filing the application for restoration was not deliberate. It maybe mentioned that application for restoration has to be considered liberally and too technical view in the matter of condonation of delay or restoration cannot be taken.
10. In N. Balakrishnan v. M. Krishnamurthy IV (1998) CLT 63 (SC) : (1998) 7 SCC 123, it has been observed that primary function of a Court is to adjudicate the dispute between the parties and to advance substantial justice. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dialatory tactics, but seek their remedy promptly. It has also been held that there is no presumption that delay in approaching the Court is always deliberate. It was further observed that when the first Court refuses to condone the delay, the superior Court would be free to consider the cause shown for the delay afresh and it is open to such superior Court to come to its own finding untrammelled by the conclusion of the lower Court.
11. In M.K. Prasad v. P. Arumugam (2001) 6 SCC 176, it has been observed that in construing Section 5 of the Limitation Act, the Court has to keep in mind that descretion in the section has to be exercised to advance substantial justice. It was further observed that even though the appellant appears not to be as vigilant as he ought to have been, yet his conduct does not, on the whole, warrant to castigating him as an irresponsible litigant. He should have been more vigilant but his failure to adopt such extra vigilance should not have been made a ground for ousting him from the litigation with respect to the property.
12. The learned Tribunal appears to have taken rather technical view that as the documents of treatment etc. which constituted the best evidence to support the stand of the petitioner, were not produced hence, the petitioner has failed to substantiate his averments. The learned Tribunal failed to notice that the petitioner's averments supported by affidavit were neither specifically denied on behalf of the appellant nor any specific plea was raised by the respondents to controvert the said averments. The respondents did not file any counter affidavit in support of their reply to the petition for restoration. No reply at all was filed to the application for condonation of delay in filing the petition.
13. Further it is obvious that the petitioner had earlier been pursuing his remedy vigilantly. There was no reason for him not to pursue his remedy had there been no disability on his part. In the circumstances, the Tribunal was not justified in dismissing the application for condonation of delay as well as for restoration of the claim petitions.
14. Thus, on appraisal of the material on record and on proper appreciation of the facts and circumstances of the case, it appears that the petitioner's averments supported by his affidavit that he was preoccupied with the treatment of his seriously ailing brother, does not deserve to be discarded. The ground as above clearly constitutes sufficient cause for his non-appearance as well as for delay in filing the petitions for restoration. Hence, the petitions should have been allowed by the Tribunal.
15. Accordingly, these appeals are allowed. The impugned orders are set aside and the applications for condonation of delay as well as for restoration of the claim petitions are allowed. The claim petitions shall stand accordingly restored. The Claims Tribunal shall now proceed to decide the claim case on merits in accordance with law. The parties shall appear before the Claims Tribunal for partaking in further proceedings of the case on 29.10.2001.