JUDGMENT Anjani Kumar, J.
1. By means of present writ petition under Article 226 of the Constitution of India, petitioner has challenged the order dated 16.1.1999, Annexure-5 to the writ petition, passed by Motor Accident Claims Tribunal, Jhansi under the provision of Motor Vehicles Act, 1988.
2. The facts leading to the filing of present writ petition are that according to the petitioner, the Motor Accident Claims Tribunal decided that case ex parte, he, therefore, filed an application for setting aside the ex parte order under Order IX, Rule 13, read with Section 151 of Code of Civil Procedure. The Tribunal, after affording opportunity to the petitioner, has rejected the aforesaid application under Order IX, Rule 13, read with Section 151 of Code of Civil Procedure. It is this order, which has been challenged by the petitioner before this Court by means of the present writ petition.
3. Learned counsel appearing for the respondents raised a preliminary objection with regard to the maintainability of the present writ petition and submitted that in view of the provision of Section 173 of the Motor Vehicles Act, 1988, (hereinafter referred to as the 'Act'), which reads as under ;
"173. Appeals.--(1) Subject to the provisions of Sub-section (2), any person aggrieved by an award of a Claims Tribunal may, within ninety days from the date of the award, prefer an appeal to the High Court :
Provided that no appeal by the person who is required to pay any amount in terms of such award shall be entertained by the High Court unless he has deposited with it twenty-five thousand rupees or fifty per cent of the amount so awarded, whichever is less, in the manner directed by the High Court :
Provided further that the High Court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time."
the remedy to the petitioner is not to approach this Court under Article 226 of the Constitution of India, but to have filed first appeal from order of the order passed by the Tribunal, including the award, be it an ex parte order. Since the petitioner has not availed of this statutory remedy available to him under law before this Court, this Court should decline to interfere in its discretionary jurisdiction under Article 226 of the Constitution of India.
4. A perusal of the aforesaid section would clearly demonstrate that the petitioner, if feels aggrieved by the award, only remedy as available to the petitioner was to approach the High Court under Section 173(1) of the Act. This writ petition, therefore, is not maintainable on the ground that the petitioner did not avail the statutory remedy under Section 173(1) of the Act under which the High Court itself was conferred with the power to deal with the appeal, which lies on facts as well as on law.
5. In this view of the matter, this writ petition is dismissed as not maintainable. The interim order, if any, stands vacated. However, the parties shall bear their own costs.