Allahabad High Court
Dinesh Kumar Singh vs National Insurance Co. Ltd. (Inre 521 ... on 8 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 2617
Bench: Anil Kumar, Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 3 Case :- REVIEW PETITION DEFECTIVE No. - 75 of 2014 Petitioner :- Dinesh Kumar Singh Respondent :- National Insurance Co. Ltd. (Inre 521 Fafo 1999) Counsel for Petitioner :- Mukesh Singh Hon'ble Anil Kumar,J.
Hon'ble Saurabh Lavania,J.
Heard Shri Mukesh Singh, learned counsel for the petitioner and Ms. Puja Arora holding brief of Shri S. C. Gulati, learned counsel for the respondent.
Initially, the respondent/National Insurance Co. Ltd. filed the appeal bearing F.A.F.O. No.521 of 1999 against the judgment and award 02.09.1999 passed by Vith Additional District Judge, Faizabad in Claim Petition No.2/93 (Ram Vishal Vs. Dinesh Kumar Singh), which was allowed by judgment and order dated 28.02.2013 passed by this Court.
By means of the present review petition, the applicant has sought for review of the judgment and order dated 28.02.2013 passed by this Court. The main grounds for seeking the review of the judgment and order dated 28.02.2013 are as under :
"1. Because the judgment and order dated 28.02.2013 has been passed by Hon'ble Court Ex-parte.
2. Because in fact, notices were never served to the applicant though he was the necessary party and owner of the vehicle in question against whom insurance company filed the aforesaid F.A.F.O.
3. Because the applicant was never given opportunity of hearing and contesting the appeal.
4. Because from the bare perusal of the reading of the impugned order dated 28.02.2013, it is clear that though the present appeal was directed against the award and judgment dated 02.02.1999 and applicant/owner was the necessary party but he was never given opportunity to contest the appeal and order dated 28.02.2013 was passed ex-parte therein.
5. Because Insurance Company in the most arbitrary manner, without complying with the order passed on 02.02.1999, did not serve the notice to the applicant and only because of this applicant remained unheard and judgment dated 28.02.2013 was passed ex-parte.
6. Because the appellant i.e. Insurance Company, by misleading the cout and by concealment of fact that steps have been taken to serve the notices to the necessary parties, got the appeal decided ex-parte, while opportunity of hearing was never afforded by the applicant.
7. Because on account of mistake or error apparent from the perusal of record, ti is clear that applicant was not given opportunity of hearing and he was never heard to plead and establish his case before the Hon'ble Court and therefore since this Hon'ble Court has relied upon the submission made by the insurance Company for passing the judgment dated 28.02.2013, is liable to be reviewed."
Ms. Puja Arora, learned counsel for the respondent submits that affidavits filed by review applicant/Shri Dinesh Kumar Singh in the instant case including the better affidavit filed along with the application (C.M.A.No.140588 of 2019) for condontion of delay are liable to be ignored being not properly verified and being so on the basis of the same, neither delay can be condoned nor review petition can be allowed. In support of her arguments, she has placed reliance on the para 24 judgment given by Hon'ble the Apex Court in the case of Amar Singh vs. Union of India and others, (2011) 7 SCC 69, wherein it has been held as under :-
"24. Another Constitution Bench of this Court in A.K.K. Nambiar v. Union of India [(1969) 3 SCC 864 : AIR 1970 SC 652] , held as follows: (SCC p. 867, para 8) "8. ... The appellant filed an affidavit in support of the petition. Neither the petition nor the affidavit was verified. The affidavits which were filed in answer to the appellant's petition were also not verified. The reasons for verification of affidavits are to enable the Court to find out which facts can be said to be proved on the affidavit evidence of rival parties. Allegations may be true to knowledge or allegations may be true to information received from persons or allegations may be based on records. The importance of verification is to test the genuineness and authenticity of allegations and also to make the deponent responsible for allegations. In essence verification is required to enable the Court to find out as to whether it will be safe to act on such affidavit evidence. In the present case, the affidavits of all the parties suffer from the mischief of lack of proper verification with the result that the affidavits should not be admissible in evidence."
We have heard learned counsel for the parties and gone through the records as well as the judgment cited by learned counsel for the respondent.
From the perusal of the record, it transpires that the appeal bearing F.A.F.O. No.521 of 1999 was filed against the judgment and award 02.09.1999 passed by Vith Additional District Judge, Faizabad in Claim Petition No.2 of 1993 (Ram Vishal Vs. Dinesh Kumar Singh). By judgment and order dated 28.02.2013, the appeal i.e. F.A.F.O. No.521 of 1999 was finally decided in favour of National Insurance Co. Ltd.-appellant (in short "Company").
After the judgment dated 28.02.2013, the Company filed the execution case. In the execution case, the recovery certificate was issued on 07.07.2013 and thereafter the review applicant came to know about the judgment dated 28.02.2013, under review. Thereafter, the review petition along with application for condonation of delay was filed before this Court mainly on the above said grounds.
From perusal of the order sheet, it appears that on 03.12.1999, the appeal was admitted and order to issue notice to respondents in the appeal was passed. The order dated 03.12.1999 is quoted below :
"Heard.
Admit.
Issue notice.
List after due service along with the record of the claim petition. The execution of the award shall remain stayed, provided the petitioner deposits 1/2 of the amount under the award including the amount, if any, deposited under Section 173 of the Motor Vehicle Act within one month from today."
Thereafter, the appeal was listed before this Court on 28.02.2013 and on the said date, the appeal was partly allowed.
From the record of the F.A.F.O. No.521 of 1999 it is evident that on behalf of respondent no.1 in appeal namely Sri Ram Vishal Pandey, two Vakalatnamas were filed. One Vakalatnama bears name of Sri Radhey Lal Misra, Advocate and Gaya Prasad Tiwari, Advocate and another Vakalatnama bears the name of Sri P. C. Agarwal, Adovate and Sri D. K. Srivastava, Advocates. The name of Sri P. C. Agarwal and Sri D. K. Srivastava appears in the judgment, under review.
It also appears from the record of F.A.F.O. No.521 of 1999 that neither steps were taken nor notices were issued nor the review-applicant-Sri Dinesh Kumar Singh, respondent no.2 in the F.A.F.O. No.521 of 1999 was served through any of the mode provided for service of notice nor there is anything on record, including Vakalanama, from which it can be presumed that the review applicant-Sri Dinesh Kumar Singh was served or was having knowledge of the F.A.F.O. No.521 of 1999 decided vide judgment dated 28.02.2013, against which, present review petition has been filed.
From the aforesaid, it is apparent that F.A.F.O. No.521 of 1999 was decided on 28.02.2013 without service of notice of F.A.F.O. upon opposite party no.2, the review applicant-Sri Dinesh Kumar Singh. and without hearing him.
Taking into account the aforesaid facts, which are evident from the record of F.A.F.O. No.521 of 1999, we would like refer the relevant portion of the judgment passed by the Hon'ble Apex Court in the case of Neeraj Kumar Sainy and others vs. State of Uttar Pradesh and others, (2017) 14 SCC 136, the same are as under :
"26. The seminal question that is required to be posed is whether the maxim actus curiae neminem gravabit would be applicable to such a case. In Jang Singh v. Brij Lal [Jang Singh v. Brij Lal, AIR 1966 SC 1631], a three-Judge Bench noted that there was error on the part of the court and the officers of the court had contributed to the said occur. Appreciating the fact situation, the Court held: (AIR p. 1633, para 6) "6. ... It is no doubt true that a litigant must be vigilant and take care but where a litigant goes to Court and asks for the assistance of the Court so that his obligations under a decree might be fulfilled by him strictly, it is incumbent on the Court, if it does not leave the litigant to his own devices, to ensure that the correct information is furnished. If the Court in supplying the information makes a mistake the responsibility of the litigant, though it does not altogether cease, is at least shared by the Court. If the litigant acts on the faith of that information the courts cannot hold him responsible for a mistake which it itself caused. There is no higher principle for the guidance of the Court than the one that no act of courts should harm a litigant and it is the bounden duty of courts to see that if a person is harmed by a mistake of the court he should be restored to the position he would have occupied but for that mistake. This is aptly summed up in the maxim: Actus curiae neminem gravabit."
27. Noting that there was mistake by the District Court concerned, relief was granted by stating so: (Jang Singh case [Jang Singh v. Brij Lal, AIR 1966 SC 1631] , AIR p. 1633, para 8) "8. ... In view of the mistake of the court which needs to be righted the parties are relegated to the position they occupied on 6-1-1958, when the error was committed by the court which error is being rectified by us nunc pro tunc."
28. Another three-Judge Bench in Jagannath Singh v. Ram Naresh Singh [Jagannath Singh v. Ram Naresh Singh, (1970) 1 SCC 573 : 1970 SCC (Cri) 238] , took note of the fact that the judgment by the High Court had been rendered ex parte, and the application for recall did not impress the High Court. Appreciating the factual matrix that there was an error in the cause-list and accepting that there was an omission to mention the case correctly in the cause-list and treating it as a mistake of the court, the Court held that though there was some negligence on the part of the counsel or of his clerk but it was not so grave as to disentitle the party to be heard, and in any event, the alleged contemnors could not be punished for a mistake on the part of their counsel or the counsel's clerk. Being of this view, this Court set aside the order with costs.
29. In Atma Ram Mittal v. Ishwar Singh Punia [Atma Ram Mittal v. Ishwar Singh Punia, (1988) 4 SCC 284] , this Court, in the context of interpretation of Section 13(1) in juxtaposition with Section 1(3) of the Haryana Urban (Control of Rent and Eviction) Act, 1973, adopting the purposive interpretation ruled: (SCC pp. 288-89, para 8) "8. It is well settled that no man should suffer because of the fault of the court or delay in the procedure. Broom has stated the maxim actus curiae neminem gravabit -- an act of court shall prejudice no man. Therefore, having regard to the time normally consumed for adjudication, the ten years' exemption or holiday from the application of the Rent Act would become illusory, if the suit has to be filed within that time and be disposed of finally. It is common knowledge that unless a suit is instituted soon after the date of letting it would never be disposed of within ten years and even then within that time it may not be disposed of. That will make the ten years' holiday from the Rent Act illusory and provide no incentive to the landlords to build new houses to solve problem of shortages of houses. The purpose of legislation would thus be defeated. Purposive interpretation in a social amelioration legislation is an imperative irrespective of anything else."
30. The aforesaid authorities deal with three different situations. There cannot be an iota of doubt that no prejudice shall be caused to anyone due to the fault of the court, but it is to be seen in what situations the court can invoke the maxim actus curiae neminem gravabit. In this regard, reference to the authority in Jayalakshmi Coelho v. Oswald Joseph Coelho [Jayalakshmi Coelho v. Oswald Joseph Coelho, (2001) 4 SCC 181] would be apt. In the said case, the Principal Judge, Family Court, Bombay had modified the earlier decree. The same was challenged in the writ petition which was dismissed. The Division Bench confirmed the order of the learned Single Judge, which compelled the appellant to approach this Court. Dealing with the principle of rectification of decree under Section 152 CPC, the Court opined that there can be hardly any doubt that any error occurred in the decree on account of arithmetical or clerical error or accidental slip may be rectified by the court. It has been further observed that the basis of the said provision is founded on the maxim that an act of court will prejudice no man. The Court referred to the authorities in Assam Tea Corpn. Ltd. v. Narayan Singh [Assam Tea Corpn. Ltd. v. Narayan Singh, 1980 SCC OnLine Gau 7 : AIR 1981 Gau 41] , Janakirama Iyer v. Nilakanta Iyer [Janakirama Iyer v. Nilakanta Iyer, AIR 1962 SC 633] , Bhikhi Lal v. Tribeni [Bhikhi Lal v. Tribeni, AIR 1965 SC 1935] , Master Construction Co. (P) Ltd. v. State of Orissa [Master Construction Co. (P) Ltd. v. State of Orissa, AIR 1966 SC 1047] , Dwaraka Das v. State of M.P. [Dwaraka Das v. State of M.P., (1999) 3 SCC 500] and Thirugnanavalli Ammal v. P. Venugopala Pillai [Thirugnanavalli Ammal v. P. Venugopala Pillai, 1939 SCC OnLine Mad 222 : AIR 1940 Mad 29] and, eventually analysing the facts, opined that rectification of the decree was totally misconceived.
31. In this regard, we may usefully refer to a passage from Kalabharati Advertising v. Hemant Vimalnath Narichania [Kalabharati Advertising v. Hemant Vimalnath Narichania, (2010) 9 SCC 437 : (2010) 3 SCC (Civ) 808] , wherein it has been ruled that the maxim actus curiae neminem gravabit, which means that the act of the court shall prejudice no one, becomes applicable when a situation is projected where the court is under an obligation to undo the wrong done to a party by the act of the court. In a case, where any undeserved or unfair advantage has been gained by a party invoking the jurisdiction of the court, and the same requires to be neutralised, the said maxim is to be made applicable.
32. In this regard, reference to the Constitution Bench decision in Sarah Mathew v. Institute of Cardio Vascular Diseases [Sarah Mathew v. Institute of Cardio Vascular Diseases, (2014) 2 SCC 62 : (2014) 1 SCC (Cri) 721] would be seemly. In the said case, the question for consideration was whether for the purposes of computing the period of limitation under Section 468 CrPC the relevant date is the date of filing of the complaint or the date of institution of the prosecution or whether the relevant date is the date on which a Magistrate takes cognizance of the offence. Answering the issue, the Court held that for that purpose computing the period of limitation under Section 468 CrPC the relevant date is the date of filing of the complaint or the date of institution of prosecution and not the date on which the Magistrate takes cognizance. In the course of deliberation, the larger Bench observed: (SCC pp. 96-97, para 39)
39. ... The object of the criminal law is to punish perpetrators of crime. This is in tune with the well-known legal maxim nullum tempus aut locus occurrit regi, which means that a crime never dies. At the same time, it is also the policy of law to assist the vigilant and not the sleepy. This is expressed in the Latin maxim vigilantibus et non dormientibus, jura subveniunt. Chapter XXXVI CrPC which provides limitation period for certain types of offences for which lesser sentence is provided draws support from this maxim. But, even certain offences such as Section 384 or 465 IPC, which have lesser punishment may have serious social consequences. The provision is, therefore, made for condonation of delay. Treating date of filing of complaint or date of initiation of proceedings as the relevant date for computing limitation under Section 468 of the Code is supported by the legal maxim actus curiae neminem gravabit which means that the act of court shall prejudice no man. It bears repetition to state that the court's inaction in taking cognizance i.e. court's inaction in applying mind to the suspected offence should not be allowed to cause prejudice to a diligent complainant. Chapter XXXVI thus presents the interplay of these three legal maxims. The provisions of this Chapter, however, are not interpreted solely on the basis of these maxims. They only serve as guiding principles."
It is settled principle that even administrative order which involve civil consequences must be passed after following the principle of natural justice and providing opportunity of hearing and the orders which have been passed against settled principle and are unsustainable. The basic idea of observing principles of natural justice is to secure justice or to put in another way to prevent miscarriage of justice.
Further, if any order which has civil consequences and adverse effect on a person against whom it has been passed, he should be given an opportunity of hearing prior to passing of the same. If the same is not done, then the order so passed will in violation of fair play, liable to be set aside.
A seven-Judges' Bench of the Hon'ble Apex Court in the case of Maneka Gandhi v. Union of India, (1978) 1 SCC 248 : (AIR 1978 SC 597) has held that the substantive and procedural laws and action taken under them will have to pass the test under Article 14 of the Constitution. The test of reasons and justice cannot be abstract. They cannot be divorced from the needs of the nation. The tests have to be pragmatic, otherwise they would cease to be reasonable. The procedure prescribed must be just fair and reasonable, even though there is no specific provision in a statute or rules, made thereunder, for showing cause against action proposed to be taken against an individual, which affects the right of that individual. The duty to give reasonable opportunity to be heard will be implied from the nature of the function to be performed by the authority which has the power to take punitive or damaging action. Even executive authorities which take administrative action in-volving any deprivation of or restriction on inherent fundamental rights of citizens, must take care to see that justice is not only done hut manifestly appears to be done. They have a duty to proceed in a way which is free from even the appearance of arbitrariness, unreasonableness or unfairness. They have to act in a manner which is patently impartial and meets the requirement of the natural justice.
In Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405 : (AIR 1978 SC 851), the Apex Court reiterated the same view.
In the case of D.K. Yadav v. J.M.A. Industries Ltd., (1993) 3 SCC 259, the Apex Court observed that an order which involves civil consequences, must be just, fair, reasonable, unarbitrary and impartial and meet the principles of natural justice. Same view has been reiterated in the cases of Canara Bank v. V.K. Awasthy, (2005) 6 SCC 321 : (AIR 2005 SC 2090); Bidhannagar (Salt Lake) Welfare Assn. v. Central Valuation Board, (2007) 6 SCC 668 : (AIR 2007 SC 2276); and Devdutt v. Union of India, 2008 (3) ESC 433 (SC) : ((2008) 8 SCC 725 : AIR 2008 SC 2513).
In the case of Erusian Equipment and Chemicals Ltd. v. State of West Bengal and another A.I.R. 1975 SC 266; Raghunath Thakur v. State of Bihar and others A.I.R. 1989 SC 620; and Gronsons Pharmaceuticals (P) Ltd. v. State of Uttar Pradesh and others A.I.R. 2001 SC 3707 and the decisions of the Division Bench of this Court in Smt Rajni Chauhan v. State of U.P and others 2010 (6) AWC 5762 (All.) also it has been held that an order which leads to civil consequences cannot be passed without affording an opportunity of hearing and the same must be passed in conformity of principles of natural justice.
Keeping in view the aforesaid facts, which are evident from the record of the FAFO No. 521 of 99 particularly that without any notice to the review applicant, Dinesh Kumar Singh and without giving any opportunity of hearing to him, the FAFO No. 521 of 99 was decided vide impugned judgment and order dated 28.02.2013 as well as the settled legal preposition of law that any order having civil consequences if passed without hearing or giving opportunity of hearing to the person concerned/aggrieved, then the same would be violative of the principles of natural justice and is liable to be set-aside, we are of the view that the arguments raised by the learned counsel for the Company has got no force.
Taking into consideration the aforesaid fact as well as the settled principles of law, we are of the view that the application for condonation of delay as well as also the application for review are liable to be allowed in the interest of substantial justice.
Accordingly, the application for condonation of delay as well as the review application are allowed. The judgment and order dated 28.02.2013 passed in FAFO No. 521 of 1999 (National Insurance Company Ltd. v. Ram Vishal Pandey), is hereby recalled. The FAFO No. 521 of 1999 is restored to its original number.
Further, looking into the valuation of the appeal, the same is cognizable by a learned Single Judge.
Office is directed to place the F.A.F.O. No.521 of 1999 before appropriate Bench.
On the next date of listing, the name of Shri Mukesh Singh be shown as counsel for the respondent no.2 in the F.A.F.O. No.521 of 1999.
(Saurabh Lavania,J.) (Anil Kumar,J.) Order Date :- 8.1.2020/Mahesh