Himachal Pradesh High Court
Bhushan Kumar vs Ashwani Kumar on 28 March, 2025
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Revision No.40 of 2019 Reserved on: 17.03.2025 Decided on: 28.03.2025 Bhushan Kumar ...Petitioner Versus Ashwani Kumar ...Respondent Coram Hon'ble Mr. Justice Satyen Vaidya, Judge Whether approved for reporting? No. For the petitioner: Mr. Ajay Sharma, Senior Advocate with Mr.Atharv Sharma, Advocate.
For the respondent: Mr. Janesh Gupta, Advocate. Satyen Vaidya, Judge By way of instant petition, petitioner has assailed order dated 14.03.2019, passed by learned Motor Accident Claims Tribunal-I, Kangra at Dharamshala, H.P., in CMA No.62/2015, whereby the application of the petitioner herein for condonation of delay in filing application under Order 9 Rule 13 of the Code of Civil Procedure, (for short, "the Code) has been dismissed.
2. The respondent herein filed a petition under Section 166 of the Motor Vehicles Act against the petitioner herein and thereby sought compensation for injuries suffered by him in motor 2 vehicle accident involving bus No. HP-38-3735. It was alleged that on 11.03.2003 at about 6:30 PM when the petitioner was riding his scooter from Jassur to Nurpur in District Kangra, at place near Niyazpur Chowk, bus No. HP-38-3735 hit the scooter of the petitioner. It was also alleged that at the time of accident, the bus was being driven by petitioner herein in a rash and negligent manner.
3. Learned Motor Accidents Claims Tribunal (for short, "the Tribunal") allowed the petition of respondent herein vide award dated 18.01.2007 and awarded compensation of Rs.1,60,568/- with interest at the rate of 9% per annum from the date of filing of petition. The liability was fastened upon petitioner herein.
4. The petitioner had been proceeded against ex-parte by learned Tribunal on 16.06.2004. Thereafter, the entire proceedings in MAC Petition No.59-N/II/2003 were taken ex-parte and finally the ex-parte award was passed.
5. The petitioner herein filed an application under Order 9 Rule 13 of the Code on 04.03.2015 with a prayer to set aside ex-parte ward dated 18.01.2007 passed against him by learned Tribunal. Along with said application, petitioner herein also filed a separate application under Section 5 of the Limitation Act for 3 condonation of delay in filing the application under Order 9 Rule 13 of the Code.
6. Both the applications were contested by the respondent herein.
7. On 13.01.2016, learned Tribunal framed issues as under:
"1. Whether there are reasonable grounds to allow the application which has been filed by the applicant under section 5 of Indian Limitation Act for condonation of delay? OPA
2. Whether the application is not maintainable in the present form?OPR.
3. Relief."
8. Subsequently, on 05.12.2018, an additional issue was also framed as issue No.2-A in following terms:
"2-A Whether the applicant has got sufficient reason to set aside the exparte award dated 18.01.07 passed in MACT petition No.59- N/II/2003? OPA"
9. While passing the final order, learned Tribunal has held that the question of deciding application under Order 9 Rule 13 of the Code would arise in case the application for condonation of delay was allowed.
10. Learned Tribunal vide order dated 14.03.2019 dismissed the application for condonation of delay of the petitioner herein by holding that the petitioner herein had failed to 4 prove any sufficient cause for not filing the application within limitation. It was specifically noticed that the petitioner herein in the execution petition was served for 25.11.2014, but he did not appear in the Court. Further, learned Tribunal took note of the fact that even after 25.11.2014, the petitioner herein applied for certified copies of award passed by learned Tribunal on 19.02.2015, which was ready on 26.02.2015 and still the applications for setting aside ex-parte award as also for condonation of delay were filed on 04.03.2015. Learned Tribunal held that since admittedly the petitioner herein had acquired knowledge of the execution taken against him on 25.11.2014, the limitation to file application for setting aside ex-parte award had expired on 26.12.2014. In this manner, learned Tribunal has found the conduct of the petitioner herein to be remiss and negligent. Thus, learned Tribunal had refused to condone the delay. 11 I have heard learned counsel for the parties and also gone through the record carefully.
12 Learned counsel for the petitioner has submitted that the petitioner had not been served in MAC Petition No.59- N/II/2003 and, as such, he had no knowledge about the proceedings or the award passed against him. He made a reference to the summons issued to the petitioner by learned Tribunal for appearance on 27.05.2004 and submitted that even 5 from the report of Process Server proper service of petitioner could not be inferred. He further submitted that, though, on 27.05.2004 one Shri. A.S. Chopra, Advocate, had put in appearance for the petitioner before learned Tribunal and had filed his memorandum of appearance, but the same was without any instructions from the petitioner. He further submitted that as soon as the petitioner attained knowledge about the execution petition filed against him, he immediately filed the applications for setting aside ex-parte award and also for condonation of delay in filing such application.
13. The contents of application for condonation of delay filed by the petitioner read as under:
"1. That the above titled application has been filed before this Hon'ble Court.
2. That the applicant/Respondent was not properly served and due to serious illness he could not apply for setting aside ex-parte award dated 18-01-07. The applicant is still seriously ill and after knowing the execution of the said award applied for the copies of award and other of this Hon'ble Tribunal dated 04-03-2004, 23- 04-2004. 27-05-2004 and 16-06-2004 in the month of Nov 2014. The copies of award and order were received on 26.2.15.
3. That the absence of the applicant was not intentional but due to his illness.6
An affidavit duly attested is attached herewith.
It is, therefore, prayed that the delay in fling of the application under order 9 rule 13 of C.P.C. may please be condoned taking into consideration the facts and circumstances and illness of the applicant in the interest of justice."
14. There is no averment in the application that the petitioner intended the contents of application under Order 9 Rule 13 of the Code filed by him to be read as part of the application for condonation of delay. Meaning thereby, the petitioner relied upon the contents as noticed above. However, since learned Tribunal had framed issued No.2A as noticed above, the evidence was led accordingly.
15. In the first instance, it has been sought to be proved by the petitioner that he was not served in MAC Petition No.59- N/II/2003. He has tried to establish that the name of his wife is Pushpa Devi, whereas the Process Server, who had reported on the summons, had mentioned the name of his wife as Sunita Devi. The contention of the petitioner is rendered insignificant as the petitioner was represented on 27.05.2004 by Shri A.S. Chopra, Advocate. The said Advocate has also been examined as witness by the respondent, who deposed that he had appeared on telephonic instructions and since there was a long time lapse, 7 he could not recollect the exact details. Though, the petitioner has alleged that he had not instructed Shri A.S. Chopra, Advocate, to appear, but the conduct of the petitioner is not sufficient to justify such stand. It is not the case of the petitioner that he had issued any notice to Shri A.S. Chopra, Advocate. Admittedly, the petitioner did not initiate any proceedings against said Advocate. While cross-examining Shri A.S. Chopra, Advocate, it was not even suggested to him that the said Advocate had appeared for the petitioner in connivance with respondent. That being so, it cannot be said that the petitioner was not duly served or had no knowledge about the filing of MAC Petition No.59-N/II/2003 against him.
16. It can be seen in above backdrop that there is no averment in the application for condonation of delay to explain the period of huge delay, save and except that the petitioner acquired knowledge in the month of November 2014 and also that he could not take steps on account of his ailment.
17. Learned Tribunal has found even such an averment to be against the records. The petitioner had been served in execution for 25.11.2014 and he had submitted application for certified copies on 19.02.2015. Learned counsel for the petitioner has not been able to rebut the finding of fact returned by the 8 learned Tribunal. That being so, the entire edifice of the case of the petitioner has been demolished.
18. The limitation to file application for setting aside ex- parte award is 30 days. The award was passed on 18.01.2007 and the application for setting aside the same was filed on 02.03.2015. The petitioner was required to satisfy the learned Tribunal with reasons which could be held to be sufficient for condonation of delay.
19. In the light of what has been discussed above, I am of the considered view that the petitioner had miserably failed to discharge the burden and hence no interference with the impugned order is warranted.
20. In result, the petition is dismissed along with pending application(s), if any, with no order as to costs.
(Satyen Vaidya ) Judge 28th March, 2025 (vt)