Andhra Pradesh Wakf Board, Hyderabad Vs. Alapati Mangamma and ors. - Court Judgment

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trusts and societies - jurisdiction of subordinate court - order 6 rule 5 of code of civil procedure, 1908 - whether court had jurisdiction to dismiss suit on ground of non-compliance with order passed under order 6 rule 5 - order 6 rule 5 provided court with authority to pass order requiring either party to furnish better particulars - held, court had ample jurisdiction to dismiss suit on ground of non-compliance with order 6 rule 5. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of section 149 of the act, and no other grounds are available to it. the insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. if insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the legislature and annihilate mandate of the provisions of sections 170 and 149 of the act. the insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. in the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. therefore, the joint appeal as filed by the insured and the insurer is not maintainable. section 166: [v. gopala gowda & jawad rahim, jj] claim for compensation accident due to mechanical defect in the vehicle held, it is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under workmens compensation act. the insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of section 149 of the act. the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under workmens compensation act, but also under benevolent provisions under section 166 and 167 of the m.v. act. the right of driver to seek compensation is not restricted only to the workmens compensation act, it has been enlarged to enable such person to seek just compensation (sections 166 and 168), conferring upon him the right of election engrafted under section 167 of the act to choose either of the two forum. the only defence which the insurer could take is limit of its liability as enumerated under section 147 of the act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the tribunal which crystallizes into enforceable right against both. in the instant case, the claimant/driver has exercised right of election under section 167 of the act to seek compensation under section 166 of the act resulting in award passed by the tribunal. therefore, the insured and the insurer have no escape but to discharge the said award as directed. undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. the owner is therefore, tortfeasor. section 168: [v. gopala gowda & jawad rahim, jj] insurers limit of liability - held, it is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. is for the insurance company to show that the insurance policy was a statutory policy and not a contractual policy to restrict its liability. that issue was neither raised before the tribunal nor is raised in this appeal requiring decision. thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under section 149 (1) of the act. where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the act, instead of seeking compensation under the workmens compensation act. on facts, held, the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. the settled principles governing determination of compensation has been given a go-bye. compensation of rs.4,15,150/- awarded by the tribunal was enhanced to rs.8,20,000/-. - 4. then it is contended by the learned counsel that the learned subordinate judge should not have dismissed the suit for not furnishing better or further particulars pursuant to the order made in i. even otherwise we are satisfied that this contention is devoid of any force. for furnishing better and further particulars to impose a condition that the suit should stand dismissed if the said order was not complied with. a further and better statement of the nature of the claim or defence, or further and better particulars of any matter stated in any pleading, may in all be ordered, upon such terms as to costs or otherwise as may be just. where under order vi, rule 5 of the code of civil procedure a court has ordered a defendant in a suit to give further and better particulars of a matter pleaded in his written statement, on failure by him to comply the court has jurisdiction to direct that his defence be struck out' 6. the learned judges referred to the decision in (1893) 1 qbd 185 (supra). in the second or the cases the subordinate judge dismissed the plaintiff's suit for failure to comply with the terms of a previous order calling upon him to supply certain information in response to interrogatories filed by the defendant. held i am clear that the application was one under order 6, rule 5 that the original orders were passed upon it under that rule and that the order dismissing the suit would have been a perfectly legal order to pass for a failure to comply with the teems of that rule. this has been held recently by reilly and cornish j, in ilr 53 mad 645 =(ath 1930 mad 473) (supra) and indeed it is difficult to see what other course a court could adopt upon the failure of a plaintiff to furnish the information required by rule 5 except to dismiss the suit' the nagpur high court also held in firm baxiram rudmal v. where the plaintiff has, after several chances, failed to produce necessary particulars within the time granted, the court can dismiss his suit and where the trial judge makes an order of this kind and makes it fairly giving every kind of chance, an appellate court if indeed it has any power at all to interfere with such a discretion so judicially exercised, should be ex-ceedingly slow to do so. ' 7. in view of the above decisions, we hold that a court has ample jurisdiction to dismiss his suit where further and better particulars are not furnished pursuant to an order passed by the court under order vi, rule 5, c.ramachandra rao, j. 1. this is an appeal by the plaintiff against the dismissal of his suit, o. s. no. 8 of 1968 by the learned subordinate judge, eluru. the plaintiff the andhra pradesh waqf board, filed the suit for recovery of possession of certain lands alleging that the said lands were constituted as waqf properties and that the alienations made by one mohammad abdul rahman and his heirs from 1952 to 1954 in favour of each of the defendants 1 to 16 were void and not binding on the plaintiff. the relevant paragraphs in the plaint read as follows:-- '3. the inam lands covered by r. s. nos. 268, 269, 270, 271, 272 of pasivedala village measuring ac. 17-05, ac. 15-74, ac. 26-30, ac. 14-18, and ac. 26-05 and by r. s. nos. 254/3,255/1,255/2, 255/3,254, 191, 193, 194 and 195 measuring ac. 1-80, ac. 7-29, ac. 0-91, ac. 1-18, ac. 8-49, ac. 20-56, ac. 26-10, ac. 25-02 and ac. 4-59 cents are waqf properties having been endowed for the support of and services in the mosque at aurangabad village, kovvur taluk, west godavari district. the income of the said lands were utilised for the support, of and services in the said mosque of aurangabad, kowur, taluk west godavari district for over 200 years 4. after the constitution of wakf board under the waqf act, 1954 (act 20 of 1954 central) the waqf board notified the said lands to be want properties by a notification published in the andhra pradesh gazette part ii dated 19-4-1962 (pp 440 and 441;. 5. sri mohammed abdul rahaman and his heirs alienated ac. 13-11 cents in the above said numbers from 1952 to 1954 in favour of each of the defendants 1 to 16. the said alienations being alienations of portions of waqf properties, they are void and not binding on the plaintiff. xx xx xx 8. the cause of action for the suit has arisen on 19-4-1972 when the suit schedule properties were notified as waqf properties and on several dates when the mutawalli and his heirs or representatives alienated the suit schedule properties from 1952 to 1954 to several of the defendants and on all such dates of alienation when the defendants were in unlawful occupation of the suit land and when the said alienations are void and not binding on the plaintiff. on 1-8-1967 when the plaintiff got issued a registered notice demanding delivery of possession and no compliance to it is made within the jurisdiction of this hon'ble court at pasivedala and vemulluru, kowur taluk where the suit schedule lands are situated. xx xx xx 10. the plaintiff therefore prays that this hon'ble court may be pleased to pass judgment and decree in favour of the plaintiff. 1. for the recovery of possession of the suit schedule properties after ejecting the defendants therefrom. 2. for costs of the suit. 3. for such other and further reliefs as are necessary in the circumstances of the case. 'plaint schedules. no.t.d. no. survey no. extentac. cts.d. m.1.(a)12492680-450-18 (b)2701-200-482.12492720-500-203.12492680-300-124.12492681-150-465.12491911-200-456.(a)12491910-600-24 (b)1932-300-927.12491930-300-148.12491930-600-249.12491940-200-0810.12491940-700-2811.8012540-550-2212.8012541-560-6218.8012540-100-0414.8012540-450-1815.8012540-500-2016.8012540-450-1813.11 5. h.m. 5 d.m.'the other paragraphs of the plaint are omitted as not necessary. 2. the 10th defendant filed an application i. a. no. 1353/1968 stating that the averments made in the plaint and the schedule appended thereto are vague and do not furnish any details with regard to the description of the lands or their boundaries or the villages in which they are situated or the persons who are alleged to be in possession of the said lands or the dates of the alienations of the said lands and the persons who alienated the said lands, and therefore the plaintiff should be called upon to furnish full particulars. that application was filed under order vi, rule 5 read with section 151, c. p. c. the application was heard on 11-12-1968 and the learned subordinate judge passed an order directing the plaintiff to furnish full particulars on or before 1-1-1969 and that in default the suit shall stand dismissed with costs. this order was not complied with by the plaintiff. the suit was then posted for hearing to 2-1-1969. on that day, the learned judge dismissed the suit with costs, as the terms of the order in i. a. 1358 of 1968 were not complied with; it is against this order that this appeal has been filed. 3. sri munwar ali baig contended that on 1-1-1969 the plaintiff filed an application for extension of time and also a statement on 2-1-1969 furnishing the particulars with regard to some of the lands mentioned in the plaint schedule, and the lower court should have therefore extended the time. but on a perusal of the record of the lower court and the b. diary we do not find that any such petition or statement was filed by the plaintiff on 1-1-1969 or on 2-1-1969 respectively as contended for by the learned counsel. the learned counsel also, could not substantiate with reference to any record, that any such application or statement was filed in the lower court. therefore, in the circumstances we do not think that the learned subordinate judge committed an error in dismissing the suit. 4. then it is contended by the learned counsel that the learned subordinate judge should not have dismissed the suit for not furnishing better or further particulars pursuant to the order made in i. a. no. 1353 of 1968 and that the provisions of order vi, rule 5 c. p. c. do not confer any power on the court for dismissing any suit for non-compliance with a direction given under order vi, rule 5 c. p. c. but this contention has not been expressly raised in the grounds of appeal. even otherwise we are satisfied that this contention is devoid of any force. there is abundant authority for the position that the court has jurisdiction while giving a direction under order vi, rule 5, c. f. c. for furnishing better and further particulars to impose a condition that the suit should stand dismissed if the said order was not complied with. in davey v. bentinck, (1893) 1 qbd 185 an action was brought for services performed and money paid by the plaintiff for the defendant at his request and on an account stated. there was also a claim for damages for libel. an order was made by the master at the instance of the defendant directing the plaintiff to furnish particulars. some particulars were furnished. but they were found to be insufficient and summons was then taken out to strike out the statement of claim and also to dismiss the action unless the plaintiff delivered the proper particulars within 7 days and an order was made accordingly. the summons was heard and an order was made dismissing the action with costs. an appeal to the judge in chambers was also dismissed. on further appeal to the divisional court, an order was made dismissing the action with costs unless the plaintiff delivered the particulars within 15 days. the plaintiff, without delivering the particulars, preferred an appeal and the court of appeal held that the order dismissing the action for non-furnishing of particulars was proper and valid. lord esher, m. r. held that order xix, rules, 6 and 7 give the court power in certain cases to order particulars and to impose terms, and that this includes the power to add as a consequence that it the order is not complied with in a certain time the action shall be dismissed, lopes, l. j. also agreed with the view of lord esher m. r. order xix, rule 7 of the rules of the supreme court of england is in pari materia with order vi, rule 5 of c. p. c. which reads as follows: 'a further and better statement of the nature of the claim or defence, or further and better particulars of any matter stated in any pleading, may in all be ordered, upon such terms as to costs or otherwise as may be just.' 5. order vi, rule 5 c. p. c., hasbeen construed by two decisions of the madras high court in nedungadi bank ltd. v. official assignee of madras, ilr 53 mad 645 = (air j930 mad 473) and vasudevan nambiyar v. nedungathiripad, air 1932 mad 316. in the first of the cases, the learned fudges reilly and cornish jj. held as follows: 'where under order vi, rule 5 of the code of civil procedure a court has ordered a defendant in a suit to give further and better particulars of a matter pleaded in his written statement, on failure by him to comply the court has jurisdiction to direct that his defence be struck out' 6. the learned judges referred to the decision in (1893) 1 qbd 185 (supra). in the second or the cases the subordinate judge dismissed the plaintiff's suit for failure to comply with the terms of a previous order calling upon him to supply certain information in response to interrogatories filed by the defendant. on appeal, curgen-ven j. held 'i am clear that the application was one under order 6, rule 5 that the original orders were passed upon it under that rule and that the order dismissing the suit would have been a perfectly legal order to pass for a failure to comply with the teems of that rule.' his lordship further observed; 'this has been held recently by reilly and cornish j, in ilr 53 mad 645 = (ath 1930 mad 473) (supra) and indeed it is difficult to see what other course a court could adopt upon the failure of a plaintiff to furnish the information required by rule 5 except to dismiss the suit' the nagpur high court also held in firm baxiram rudmal v. seth gokul das kisan-lal mahajan, air 1940 nag 261 as follows:-- 'where a plaintiff is ordered to give particulars, one of the terms of the order may be that the action shall be dismissed unless the particulars are delivered within a certain time. where the plaintiff has, after several chances, failed to produce necessary particulars within the time granted, the court can dismiss his suit and where the trial judge makes an order of this kind and makes it fairly giving every kind of chance, an appellate court if indeed it has any power at all to interfere with such a discretion so judicially exercised, should be ex-ceedingly slow to do so.' 7. in view of the above decisions, we hold that a court has ample jurisdiction to dismiss his suit where further and better particulars are not furnished pursuant to an order passed by the court under order vi, rule 5, c. p. c. in this view we find that the order passed by the learned subordinate judge is proper and valid. no other contention is raised before us. in the result the appeal fails and is dismissed with costs. one set