Smt. Bimla and ors. Vs. Sh. Sukhvinder Singh and ors.

Smt. Bimla and ors. vs Sh. Sukhvinder Singh and ors.

Disposition Appeal allowed Court Delhi Decided Jul 11, 2002

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Citation: sooperkanoon.com/700994
Court: Delhi High Court
Judge: R.C. Chopra, J.
Decided On: Jul 11, 2002
Case Number: FAO No. 119/2001
Subject: Motor Vehicles;Civil
Disposition: Appeal allowed

Case Summary

AI-generated summary - not the official court judgment text.

Civil Procedure Code, 1908 - Order 9 Rule 9--Restoration--Claim petition dismissed on default--Application filed belatedly--Dismissed by trial court--Appeal--Wrong date was noted inadvertently and is proved by the case file of the counsel--Vigorously pursuing the case for 12 years--No willful or deliberate delay on ...

Key legal issue: Motor Vehicles;Civil
Outcome / disposition: Appeal allowed
Acts & sections: Code of Civil Procedure (CPC) - Sections 151 - Order 9, Rule 9; Motor Vehicle Act - Sections 110A; Limitation Act - Schedule - Article 122

Parties & Advocates

Appellant / Petitioner

Smt. Bimla and ors.

Advocate Sunil Khanna, Adv

Respondent

Sh. Sukhvinder Singh and ors.

Advocate Nemo

Legal References

Acts: Code of Civil Procedure (CPC) - Sections 151 - Order 9, Rule 9; Motor Vehicle Act - Sections 110A; Limitation Act - Schedule - Article 122
Reported In: 99(2002)DLT427; 2002(64)DRJ198

Excerpt

civil procedure code, 1908 - order 9 rule 9--restoration--claim petition dismissed on default--application filed belatedly--dismissed by trial court--appeal--wrong date was noted inadvertently and is proved by the case file of the counsel--vigorously pursuing the case for 12 years--no willful or deliberate delay on the part of the appellant--delay condoned and petition restored--appeal allowed.; it cannot be said that there was any willful or deliberate default on the part of the appellants in appearing before the court on 2.12.1993. this court, thereforee, is of the considered view that there were good and sufficient grounds--for the condensation of delay and restoration of the petition and the learned mact was not justified in declining the prayer of the appellants for the restoration of the petition. - - 3. the application was opposed by the respondents on the ground that none had appeared on behalf of the appellant on 2.12.1993 and since the application had been moved belatedly and beyond the period of 30 days there were no good grounds for the restoration of the petition. it cannot be said that there was any willful or deliberate default on the part of the appellants in appearing before the court on 2.12.1993. this court, thereforee, is of the considered view that there were good and sufficient grounds for the condensation ofdelay and restoration of the petition andthe learned mact was not justified in declining the prayer of the appellants for the restoration of the prayer of the appellants for the restoration of the petition......passed by learned mact by which the appellant's application under order 9 rule 9 read with section 151 of the cpc was dismissed and the prayer for restoration of the petition which was dismissed in default on 02.12.1993 was declined. 2. the facts relevant for the disposal of the appeal, briefly stated, are that the appellants petitioners being the legal heirs of deceased ajmer singh had filed a petition under section 110a of the motor vehicle act claiming compensation on account of death of deceased ajmer singh in a road accident on 29.12.1982. . the petition was filed in the year 1983. the appellants-petitioners led their evidence and the petition was listed before mact for respondent's evidence and final arguments on 2.12.1993 on which date it was dismissed in default as none appeared on behalf of the appellants. on 29.4.1994 the appellants moved an application under order 9 rule 9 read with section 151 cpc pleading that on 2.12.1993 appellant no. 1 who is an illiterate lady had come to the court and had gone back under an impression that the case had been adjourned to 16.5.1994. however, on 28.4.1994 when her counsel went for inspection of file for preparing arguments, he came to know that the petition had been dismissed in default and as such the application for restoration was moved on 29.4.1994. it was pleaded that dismissal in default on 2.12.1993 was on account of the heavy rush in the court and the appellant-petitioner no. 1 not being able to get her presence marked. she inadvertently noted the next date as 16.5.1994. the absence was neither intentional nor deliberate and thus there was sufficient cause for the restoration of the petition. 3. the application was opposed by the respondents on the ground that none had appeared on behalf of the appellant on 2.12.1993 and since the application had been moved belatedly and beyond the period of 30 days there were no good grounds for the restoration of the petition. learned mact vide the impugned orders.....

Full Judgment

R.C. Chopra, J.

1. The appeal is directed against an order dated 23.11.2000 passed by learned MACT by which the appellant's application under Order 9 Rule 9 read with Section 151 of the CPC was dismissed and the prayer for restoration of the petition which was dismissed in default on 02.12.1993 was declined.

2. The facts relevant for the disposal of the appeal, briefly stated, are that the appellants petitioners being the legal heirs of deceased Ajmer Singh had filed a petition under Section 110A of the Motor Vehicle Act claiming compensation on account of death of deceased Ajmer Singh IN a road Accident on 29.12.1982. . The petition was filed in the year 1983. The appellants-petitioners led their evidence and the petition was listed before MACT for respondent's evidence and final arguments on 2.12.1993 on which date it was dismissed in default as none appeared on behalf of the appellants. On 29.4.1994 the appellants moved an application under Order 9 Rule 9 read with Section 151 CPC pleading that on 2.12.1993 appellant No. 1 who is an illiterate lady had come to the court and had gone back under an impression that the case had been adjourned to 16.5.1994. However, on 28.4.1994 when her Counsel went for inspection of file for preparing arguments, he came to know that the petition had been dismissed in default and as such the application for restoration was moved on 29.4.1994. It was pleaded that dismissal in default on 2.12.1993 was on account of the heavy rush in the Court and the appellant-petitioner No. 1 not being able to get her presence marked. She inadvertently noted the next date as 16.5.1994. The absence was neither intentional nor deliberate and thus there was sufficient cause for the restoration of the petition.

3. The application was opposed by the respondents on the ground that none had appeared on behalf of the appellant on 2.12.1993 and since the application had been moved belatedly and beyond the period of 30 days there were no good grounds for the restoration of the petition. Learned MACT vide the impugned orders refused to restore the claim petition on the ground that application for restoration was beyond limitation prescribed by Article 122 of the limitation Act and there were no grounds for condensation of delay.

4. I have heard learned counsel for the appellants and learned counsel for the respondents. I have gone through the records.

5. There is no dispute about the fact that the calim petition was filed in the year 1983 and till 02.12.1993 when the petition was dismissed in default the appellants-petitioners were pursuing it vigorously andhad even completed their evidence. Some of the appellants-petitioners were minors even and the petition was being pursued on their behalf by their mother/natural guardian. The plea raised by the appellants in their application under Order 9 Rule 9 read with section 151 CPC was that 28.4.1994 only they had come to know that the petition had been dismissed in default and as such they moved an application for restoration of 29.4.1994 itself. A photo copy to the file of the counsel was shown to the Court according to which after 2.12.1993 the next date was recorded as 16.5.1994. It shows that the plea of the appellants in regard to the presence of appellant No. 1 on 2.12.1993 and her bonafide mistake in regard to impression that the case had been adjourned to 16.5.1994 was genuine. It cannot be said that there was any willful or deliberate default on the part of the appellants in appearing before the Court on 2.12.1993. This Court, thereforee, is of the considered view that there were good and sufficient grounds for the condensation ofdelay and restoration of the petition andthe learned MACT was not justified in declining the prayer of the appellants for the restoration of the prayer of the appellants for the restoration of the petition.

6. The appeal is, thereforee, allowed. The impugned order dated 23.11.2000 is set aside and the petition is restored to its original number. Let the petition be proceeded further in accordance with law.

7. The Trial Court file be sent back immediately.

Same Court & Year Delhi · 2002 Same Parties Smt. Bimla and ors. vs Sh. Sukhvinder Singh and ors. Same Subject Motor Vehicles;Civil Same Judge R.C. Chopra, J. Acts & Sections Code of Civil Procedure (CPC) - Sections 151 - Order 9, Rule ...

Motor Vehicles;Civil