Allahabad High Court
Ashok Kumar Sureka vs Shiv Shankar Shukla & Ors. on 11 January, 2010
Author: V.K.Shukla
Bench: V.K.Shukla
Court No. 21 Civil Misc. Writ Petition No. 66572 of 2009 Ashok Kumar Sureka Versus Shiv Shankar Shukla and others Hon'ble V.K.Shukla,J Present writ petition has been filed by petitioner questioning the validity of the order dated 12.11.2009 wherein application moved by the petitioner supported by application under Section 5 of Limitation Act has been rejected for setting aside exparte award passed in Motor Accident Claim Petition No. 327 of 2006.
Brief background of the case is that Motor Accident Claim Petition No. 327 of 2006 had been filed wherein petitioner has been impleaded and arrayed as respondent no. 1. On 25.04.2006 in the said claim petition notices were issued. Said notices were duly served and on behalf of petitioner Ashok Kumar Sureka, Sri V.K. Mishra, Advocate has entered appearance by filing authority memo on 15.11.2006 and requested for supplying copy of the claim petition and on the said request requisite orders were passed. Other co-respondents namely respondent nos. 2 and 3 filed their written statement and as far as petitioner is concerned no written statement has been filed on his behalf. On 30.07.2007 orders were passed to proceed exparte and then issues were framed on 16.08.2007. As far as petitioner is concerned repeated adjournment has been taken from his side and ultimately award in question has been passed and said award in question was sought to be executed then application had been moved for setting aside said exparte award supported by application under Section 5 of Limitation Act. Said application in question has been rejected. At this juncture present writ petition has been filed.
On 16.12.2009 learned counsel for the petitioner has stated that he was ready to deposit a sum of Rs. 75,000/- before the Tribunal within two weeks, in this background this Court directed the present writ petition for listing today i.e.11.01.2010.
Affidavit in support of deposit has also been filed. Learned counsel for the petitioner Sri Y.S. Sachan, contended with 2 vehemence that in the present case opinion which has been formed by Additional District Judge, Court No. 5 Kanpur Nagar while rejected the application under Section 5 of Limitation Act is totally arbitrary and erroneous opinion and for ends of justice order in question should be quashed, opportunity should be afforded to the petitioner.
After respective arguments have been advanced factual position which is emerging in the present case is that claim petition was filed on 25.04.2006. Notices were issued and on behalf of petitioner his counsel Sri V.K.Mishra, Advocate has entered appearance and had made request for supplying copy of claim petition and on the said request requisite orders have been passed. Other co-respondents no. 2 and 3 had filed their reply. On 30.07.2007 looking into the conduct of the petitioner orders were passed to proceed exparte. Issues were framed on 16.08.2007 and on the said date no one had entered appearance on behalf of petitioner and whenever dates were fixed in future repeated adjournment has been sought for on behalf of petitioner through different counsels whose names have been referred to in the impugned order. Evidence has been concluded and judgement has been delivered and thereafter execution proceedings has been undertaken then such a request has come forward. Motor Accident Claims Tribunal has taken into account the conduct of the petitioner as well as his counsel and clearly found that ground which has been set out are totally ingenuine and insufficient ground and with these observation said application under Section 5 of Limitation Act has been rejected. View taken by Motor Accident Claims Tribunal cannot be said to be arbitrary view from any point of view warranting interference by this Court in exercise of its authority of judicial review under Article 226 of the Constitution of India.
Consequently, writ petition as it has been framed and drawn is dismissed.
No order as to cost.
Dated 11.01.2010 Dhruv