Judgment:
J.C. Verma, J.
1. This civil misc. appeal has been filed against the order dated 30.7.1997 passed by the Addl. District Judge, Jaipur District, Jaipur in misc. application by which he had rejected the application under Order 9 Rule 13, C.P.C. filed in MACT Case No. 400/91.
2. The respondents had filed a claim application against the appellants before the MACT, Jaipur which case was transferred to the Court of learned Addl. District Judge-cum-Judge MACT, vide order dated 25.10.1991. It is stated that summons were never served upon the appellants and that they had come to know of the order When his agricultural land was ordered to be auctioned on 5.6.1997 for the amount of the award and On making enquiries, it was found that an ex-parte award had been made on 27.3.1996. Certified copy of the same was obtained which was received on 12.6.1997 and on 16.6.1997, application Under Order 9 Rule 13 was filed supported with an affidavit but the same was dismissed vide impugned order on 30.7.1997. Being aggrieved against the said order, the present misc. appeal has been filed.
3. It is the contention of the learned Counsel for the appellant that for the reason that summons were never served upon the appellant, therefore, they had sufficient cause for getting the award set aside, and therefore, the action of the Tribunal was not justified for deciding the application for ex-parte proceedings. The appellants are also challenging the ex-parte award.
4. Per contra, the Counsel for the respondent states that no appeal lies against the order of declining the setting aside the ex-parte award and it is not applicable in MACT case even though the general principles of C.P.C. are applicable. An application has also been moved to the effect that in case it is held that the appeal as such is not maintainable, in such situation, the appeal itself be treated as writ petition.
5. Even though prayer has been made even to set aside the impugned award, but no such award has been attached with the misc. appeal and an intention can be gathered from the appellant that the appellant only wanted to get the order dated 30.7.1997 set aside, otherwise the appellant would have attached the award as well.
6. Reliance is placed by the Counsel for the respondents on a judgment of this Court in the case of Vikram Singh Verma v. Smt. Kashmiri Devi and Ors. 2000 (2) WLC (Raj.) 314, wherein application was moved for setting aside ex-parte award passed by the Commissioner, Workmen's Compensation Act maintainable Under Order 9 Rule 13, it was held that on such application having been moved before the Authority and in case the Authority had dismissed the application, no misc. appeal is maintainable Under Order 43 Rule 1, C.P.C. It was further held mat even the appeal Under Order 43 Rule 1, Civil Procedure Code was not maintainable.
7. Yet in another judgment in the case of Bharat Lal v. Smt. Sriom and Ors. S.B. Civil Misc, Appeal No. 474/98 decided on 24.11.2000, the law laid down in Vikram Singh's case (supra), was affirmed that it was held that the provisions of Order 43 Rule 1, C.P.C. were not applicable and appeal was not maintainable in the application dismissed Under Order 9 Rule 13, C.P.C. and the aggrieved person is entitled to file a writ petition Under Article 227 of Constitution of India which provides that every High Court shall have superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction.
8. I am bound by the two Single Bench decisions as quoted above and hold that no appeal is maintainable and as such the appeal is dismissed as not maintainable. Alternatively, Counsel for the petitioner states that an application has been moved that in the peculiar circumstances this misc. appeal be treated as writ petition. I do not find any reason to treat this civil misc. appeal as a writ petition for the reason that the present appellant and applicant has a remedy to file a writ petition even now and is at liberty to file a fresh writ petition instead of getting the present misc. appeal treated as a writ petition. In case the petitioner now files a writ petition, he shall be entitled to urge the reasons for delay in filing the writ petition at belated stage.
9. With the above said observations, the civil misc. appeal is dismissed as not maintainable.