Allahabad High Court
Raj Bahadur & Others vs The D.J.,Kanpur Dehat & Others on 3 August, 2010
Author: Krishna Murari
Bench: Krishna Murari
Court No. - 4 Case :- WRIT - C No. - 9182 of 1995 Petitioner :- Raj Bahadur & Others Respondent :- The D.J.,Kanpur Dehat & Others Petitioner Counsel :- S.K.Anwar Respondent Counsel :- S.C. Hon'ble Krishna Murari,J.
Case called out. No one has appeared on behalf of the petitioners. However,I have heard Sri Krishna Mohan Mishra holding brief of Sri Vinod Swaroop for respondent no. 4 Insurance Company. The facts are that son of petitioner no. 1 died in motor accident. A claim petition was filed before the Motor Accident Claims Tribunal/District Judge, Kanpur Dehat which was registered as M.A.C. No. 155 of 1993. The said case was dismissed for non prosecution on 28.10.1993 on the ground that steps were not taken within time. An application was filed under Order IX Rule 4 C.P.C. for recall of the same on the ground that the petitioners were living in Etawah which is situate at a distance of 120 Kms. from Kanpur Dehat where the claim petition was filed and being very poor it was not possible for them to attend the court on every date as such the counsel was instructed to conduct the proceedings and to do the needful. It was further pleaded that on 18.10.1993 petitioner no. 1 went to Kanpur and tried to contact to his counsel but he was out of station as such he could not get any information. Thereafter, he wrote several letters to his counsel requesting him to provide information about the case but when he did not get any information he again came to Kanpur on 1.3.1994 and after making inquiries it transpired that the case was dismissed for nonprosecution on 28.10.1993. Thereafter, the petitioner went back to Etawah and after arranging expenses moved the application for recall of the order dt.28.10.1993 on 18.3.1994. The Tribunal vide order dated 13.1.1995 dismissed the application under Section 5 of the Limitation Act seeking condonation of the delay on the ground that the delay had not been sufficiently explained and consequently, the restoration application was also dismissed.
A perusal of the entire facts go to show that the delay was sufficiently explained and the Tribunal had taken a hypertechnical view in the matter while dismissing the Section 5 application without considering the fact that the petitioner was living at a distance 120 Kms. from Kanpur Dehat and instructed his counsel to do pairvi in the case. It is well settled that a litigant should not penalised for the mistake committed by his counsel. In such view of the matter, the delay was sufficiently explained and the court below has committed an illegality in dismissing the Section 5 application.
In view of above, the impugned order dated 13.1.1995 cannot be sustained and is hereby quashed. The delay in filing the application under Order IX Rule 4 C.P.C. as well as the restoration application stands allowed. The case is restored to its original number with the direction to the Tribunal to proceed in the matter in accordance with law.
The petition stands allowed.
The Registry is directed to send a copy of this order to the court concerned.
Order Date :- 3.8.2010 nd