Judgment:
S.N. Pathak, J.
1. This miscellaneous case is directed against the order dated 3rd September, 1993 passed by the 2nd Additional District Judge (Claims Tribunal), Vaishali at Hajipur in Misc. Case No. 5 of 1993.
2. The aforesaid Misc. Case was filed in the Court of 2nd Additional District Judge. Vaishali in Claim Case No. 16 of 1984. This claim case was decided ex parte against the appellant before this Court. When the appellant filed application for setting aside the ex parte award passed in the claim case, a Misc. case was registered (Misc. Case No. 5 of 1993) and this Misc. case was dismissed on preliminary issue of law of limitation.
3. It was submitted before me that in the claims case, there was no proper service upon the appellant and, therefore, when he filed the Misc. case upon knowledge regarding the ex parte award, this Misc. case should have been heard on merit, in spite of the bar imposed by time-limit.
4. It was submitted before me by the appellant's lawyer that in the first place, he had never heard of a Misc. case (under Order IX, Rule 13, C.R.C.) being dismissed in limine and that in the claim case, no notice was served upon the appellant.
5. So far the claim of the appellant that a Misc. case under Order IX, Rule 13, C.P.C. cannot be disposed of on preliminary issue of limitation, I do not find myself persuaded to accept this plea. When a Misc. case is prima facie time-barred and the condonation petition filed in this connection does not satisfy the Court, such a Misc. case can be dismissed without full hearing. It was submitted by the appellant's lawyer that the impugned order does not refer to the rejection of the objection petition and hence, it suffers from illegality on this score also, but I find that the lower Court has held in paragraph 2 of the impugned order that the petitioner (appellant) had learnt of the claims case through a notice in daily newspaper-- 'AJ' and a cutting of the same was filed. So the Court held that the appellant had notice of the pendency of the claim's case and, therefore, his plea of non-knowledge was not sustainable.
6. Certain order-sheets of the lower Courts records were referred to by the appellant's lawyer and it was submitted before me that there was an order to make a publication in the Official Gazette but subsequently, the notice was published in a daily news paper 'AJ' and since the appellant lived in the village, he could not know of the notice published in the newspaper. So there was no proper notice upon him and hence, the claim case should be heard after setting aside the ex parte award. Upon perusal of the lower Court records, I find that, of course, the notice sent through Nazarat was affixed on the house of the appellant, as he was away. When there was another service upon him through port, he refused to accept the same. Hence, the peon returned the service on refusal and in this connection, an affidavit was sworn as per the law. Moreover, I find that a registered notice was issued by order dated 22.8.1985 and returned without service. Against there was a fresh order for registered notice and the same also returned unserved. The order-sheet dated 18th July, 1986 shows that notice issued through Nazarat was returned after service. There was a fresh order for registered notice. The order-sheet dated 9th September, 1986 shows that the registered notice issued, was not returned. This order-sheet dated 21.1.1987 and 7.3.1987 shows that there was a fresh order for issuance of registered notice. The aforesaid order-sheet however, shows that the registered notices were issued several times, and returned unserved and so it should have been declared as served in view of Order V Rule 19(a) C.P.C.
7. From the aforesaid facts, it is also apparent that the Court having fed up with effecting service on the appellant directed publication of notice of the case in the newspaper and ultimately it was published in 'AJ'. The filing of the cutting of the paper by the appellant was sufficient proof that he had knowledge of the notice and the pendency of the case. The plea of the appellant before this Court that he lives in village and does not read newspaper, is not sustainable because the claim application shows that address of the appellant has being given to be Naya Tola, Muzaffarpur Town as also Lalo Chapra, P.O. Saraia in the District of Muzaffarpur. So two addressed have been given, one of Muzaffarpur town and the other relating to his native village Lalo Chapra. From the aforesaid circumstances, it is clear that the appellant was evading his appearance in spite of knowledge of pendency of the case deliberately and intentionally in order to avoid the regours of law: It is a matter of common knowledge that in claim cases normally the person liable to pay compensation avoids the payment by hook or by crook and taking recourse to the procedural procrastination, this payment is avoided as long as possible. The impugned order passed by the lower Court gives a clear linking to this fact. It is a settled principle of law that justice should not be hampered or massacred on the rocks of technicalities. I am, therefore, of the opinion that the appellant should not be allowed to defeat the order of the lower Court for payment of compensation to the respondents on the basis of technicalities or procedural defects in hearing the compensation case.
8. I am, therefore, of the opinion that this appeal is not sustainable in the facts and circumstances of the case. Hence, it is dismissed.
9. In the circumstances of the case, there shall be no order as to cost of this appeal.