Jharkhand High Court
Bibha Shukla @ Smt. Bibha Shukla @ Vibha ... vs Vijay Kumar Shukla Son Of Sri Anil Kumar ... on 6 March, 2019
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No.5614 of 2017
Bibha Shukla @ Smt. Bibha Shukla @ Vibha Shukla @ Mrs. Bibha Shukla
w/o Sri Bijay Kumar Shukla, resident of 40 K.L. Hill Colony, P.O. & P.S.
Dhanbad, District-Dhanbad.
...... Petitioner
Versus
1. Vijay Kumar Shukla son of Sri Anil Kumar Shukla, resident of 40 K.L.
Hill colony, P.O., P.S. Dhanbad, District-Dhanbad.
2. United India Insurance Company Ltd. having its office at Rajhansh
Mansion, Karbala Road, P.O., P.S. Bank More, District-Dhanbad.
3. Hirdya Mahahto (owner of vehicle No.JH-10A-4939), son of Late
Nagina Mahto, Gandhi Nagar, Sabjee Bazar, P.O., P.S. Dhansar, District
Dhanbad.
4. New India Assurance Company Ltd. having its office at B.P. Agarwala
Building, Dhansar, P.O., P.S. Dhansar, District-Dhanbad.
...... Respondents
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Petitioner : Mr. Sabyasanchi, Advocate For the Respondents :
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09/Dated 06th March, 2019 This writ petition is under Article 227 of the Constitution of India against the order passed in Misc. Case No.73/2015 wherein by virtue of order dated 26.07.2017, a petition filed under Order IX Rule 4 of Code of Civil Procedure read with Section 151 of C.P.C. for setting side the dismissal order dated 11.06.2015 and for restoration of Title (M.V.) Claim Suit No.72/2009 was dismissed for default vide order dated 11.06.2015.
Admittedly the petitioner has invoked the jurisdiction by taking aid of the provision of the Code of Civil Procedure in pursuance to the provision of Section 169 Clause (2) of the Motor Vehicle Act by filing an application under Order IX Rule 4 of Code of Civil Procedure for restoration of a Title (Motor Vehicle) Claim Suit No.72/2009 which has been dismissed for default vide order dated 11.06.2015 but the power as conferred under the provision of Order IX Rule 4 stipulates that the same can be invoked where a suit is dismissed under Rule 1 or Rule 2, the plaintiff subject to the law of limitation bring a fresh suit or he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his appearance, as the case may be, the Court shall make order setting aside the dismissal and shall fix a day for proceeding with the suit.
Order IX Rule 1 stipulates that on the day fixed in the summons for the defendants to appear and answer, the parties shall be in attendance in the Court house in person or respective pleaders in the suit shall be then heard unless a future date is fixed by a Court while Rule 2 of Order IX stipulates the dismissal of suit where summons not served in consequence of plaintiff's failure to pay cost.
According to the petitioner, the suit has not been dismissed for non- compliance of payment of cost for securing appearance of the defendant rather according to him, the suit has been dismissed due to non- appearance of the plaintiff, and therefore, the dismissal has occurred within the meaning of Order IX Rule 8 of the C.P.C.
He submits that in case of dismissal of suit due to non-appearance of the plaintiff, it will be said to be dismissal under the provision of Order IX Rule 8 and in that situation, an application is to be filed under the provision of Order VIII Rule 9 of the C.P.C. but due to wrong advice, a petition under Order IX Rule 4 of the C.P.C. has been filed.
In view thereof, learned counsel for the petitioner wants to withdraw this writ petition in order to approach before the Claim Tribunal by filing appropriate application.
Having heard the learned counsel for the petitioner and considering the submission advanced on behalf of the petitioner, the writ petition is allowed to be withdrawn, accordingly this writ petition stands dismissed as withdrawn.
However it is open to the petitioner to approach before the Accident Claim Tribunal, if approached, the same shall be dealt with in accordance with law.
(Sujit Narayan Prasad, J.) Saurabh