JUDGMENT Binod Kumar Roy, J.
1. The memorandum of this appeal filed under. Section 173 of the Motor Vehicles Act, 1988 shows that it is against the judgment dated 25.10.1991 and decree dated 15.11.1991 of the VIIth Additional District Judge, Allahabad, acting as Motor Accident Claims Tribunal passed in Misc. Claim Petition No. 59 of 1990 and that two-fold reliefs have been claimed: (i) to set aside the order dated 25.10.1991 by which the appellant's restoration application was rejected, and (ii) Misc. Claim Petition No. 59 of 1990 be sent back to the Tribunal for trial and assessment of compensation. The decree dated 15.11.1991 shows that it is a formal order drawn up in Misc. Case No. 60 of 1990 arising out of Misc. Case No. 17 of 1990 and Claim Petition No. 222 of 1987 stating rejection of the appellant's application (3/C) only.
2. The appellant filed claim petition under Section 110-D and 92-A of Motor Vehicles Act on 23.10.1987 before the Tribunal which was registered as Claim Petition No. 222 of 1987. After notice the opposite party appeared and made repeated prayers for filing W.S. By order dated 23.5.1989, as no W.S. was filed, the Tribunal passed an order to proceed ex-parte and fixed 8.8.1989 for ex-parte hearing. After several dates on 16.1.1990, as on repeated calls no one responded on behalf of the claimant, the claim petition was dismissed. On 14.2.1990 the claimant filed an application for restoration of the Claim Petition under Order IX, Rule 9 of the Code of Civil Procedure for the reasons stated in his affidavit accompanying the application. This application was registered as Misc. Case No. 17 of 1990. This Misc. case was adjourned on several dates on which the petitioner absented and ultimately was dismissed for default by order dated 1.12.1990. This order has neither been assailed nor has the appellant attached its copy alongwith this appeal. Even the learned Counsel for the appellant has not addressed us to show what wrong was committed in dismissing his case for default. On 10.12.1990 the appellant filed an application for restoration of the Misc. Case No. 17 of 1990. This was registered as Misc. Case No. 60 of 1990. It was also adjourned from time-to-time as the appellant was absent. From perusal of the impugned order, it appears that Misc. Case No. 60 of 1990 filed for reviving Misc. Case No. 17 of 1990 which was heard on 25.10.1991 and rejected by the impugned order dated 25.10.1991 on the ground that the claim of the appellant that he had sustained sprain and for that reason could not appear has not been supported by any medical certificate and, thus no good cause has been proved.
3. The memo of the appeal, as already ahead, shows that it has been filed for remitting back Misc. Claim Petition No. 59 of 1990, whereas no such case was even filed by the appellant.
4. Earlier Mr. Jaiswal, learned Counsel for the appellant, was asked to satisfy us as to how an appeal lies under Section 173 of the Act against an order refusing to restore back the Misc. case which was dismissed for default on 1.12.1990 ? His contention was that an appeal lies.
5. Today he placed reliance on two decisions British India General Insurance Company Limited, Margao v. Chanbi Shaikh Abdul Kadar 1968 Accident Claims Journal 322, and Smt. Nishemani Swain and Ors. v. Maheshwar Sahu and Ors. A.LR. 1985 Orissa 128 : I (1986) ACC 198.
6. Section 173 of the Motor Vehicles Act, 1988 reads thus:
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 percent 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 mat the appellant was prevented by sufficient cause from preferring the appeal in time.
(2) No appeal shall lie against any award of a Claims Tribunal, if the amount in dispute in the appeal is less than ten thousand rupees.
7. On a bare perusal of the aforementioned provisions we are of the view that no appeal lies before this Court under Section 173 of the Act against an order rejecting a prayer made for restoration of the claim dismissed for default. In F.A.F.O. No. 80 of 1996, Shravan Pd. Singh v. Pooran Nath Goswami, disposed of on 20.3.1996, a Division Bench of this Court (of which one of us, Binod Kumar Roy, J. was a member) preferred under Section 30 of the Workmen's Compensation Act against an order rejecting an application filed for an ex-parte order, dismissed the appeal as not maintainable, observing as follows:
A bare perusal of the aforementioned provisions leaves no manner of doubt that the Legislature has not provided appeal under the aforementioned provisions against an order rejecting an application for recall. It is settled law by now through a catina of decisions that appeal and/or revision are creation of statute and no one has got an inherent right to prefer an appeal. See Ohene Moore v. Akosseh Tayee A.I.R. 1935 Privy Council 5; Rangoon Botatoung Company Ltd. v. The Collector Rangoon (1912) 39 Indian Appeal 197 (Privy Council); Garikapati Veeraya v. N. Subbaih Choudhry and Ors. ; Soorajmull Nagannull v. State of West Bengal ; Rani Manprasad Gordhandas and Ors. v. Gopichand Shersingh Gupta and Ors. ; Smt. Ganga Bai v. Vijay Kumar and Ors. ; Special Military Estate Officer v. Munivenklalammiah and Ors. ; M/s. M. Rannarain Pvt. Ltd. and Anr. v. The State Trading Corporation of India Ltd. ; D.N. Taneja v. Bhajan Lal 1988(3) S.C.C. 26; Vijay Prakash D. Mehta and Ors. v. Collector of Customs (Preventive) ; Darshan Singh v. Ram Pal Singh and Ors. 1992 Suppl. (1) S.C.C. 191.
8. We proceed to consider the first decision relied upon by Mr. Jaiswal. It was held in this decision that as the claimant was prevented by sufficient cause from making his application in time, the discretion was correct exercised.
9. True it is that in the next decision Smt. Nishemani Swain and Ors. (supra) a learned Single Judge of the Orissa High Court had proceeded to hold, after taking a contrary view of the same High Court in Suresh Kumar Moharana v. Brundaban Barik , even though it was binding on him, that an order dismissing a claim petition owing to absence of the claimant and refusal of the opposite party to adduce evidence would be an award and hence appealable, and that the Tribunal has no jurisdiction under Order IX of the Code of Civil Procedure for recalling its previous final order. Rule 21 of the Accident Claim Tribunal (U.P.) read thus:
21. Code of Civil Procedure to apply in certain cases. The following provisions of the First Schedule to the Code of Civil Procedure, 1908, shall, as far as may be apply to proceedings before the Claims Tribunals, namely, Order V, Rules 9 to 13 and 15 to 33; Order IX; Order XIII, Rule 3 to 10; Order XVI, Rules 2 to 21; Order XVII; and Order XVIII, Rules 1 to 3.
It clearly talks of the applicability of Order IX of the Code of Civil Procedure to the proceedings before 6ur Tribunal.
Disagreeing with the view of the learned Single Judge of the Orissa High Court on whom the earlier view taken by another learned Single Judge of his own High Court was binding on him, which agrees with our view, we further hold that the impugned order is not an award within the meaning of the Act against which an appeal can be preferred under Section 173 of the Act. We are further of the view that the decision in State of Orissa v. Member Sales Tax Tribunal I.L.R. (1971) Cuttuck 1325, relied upon by the learned Single Judge was in relation to existence of inherent powers to a Sales Tax Tribunal and was no authority for the proposition to hold that the Motor Vehicles Tribunal lacked inherent powers.
Our view also gets support from the following observations made by the Apex Court in Indian Batik v. Satyam Fibres :
....Inherent powers are powers which are resident in all Courts....These powers spring not from legislation but from the nature and other constitution of the Tribunals or Courts themselves so as to secure obedience to its process and rules, protect its officers from...wrong.... This power is necessary for the ordinary administration of the Court's business.
(Emphasis supplied) It also finds support from the ratio laid down by the Five Judges Full Bench decision of the Patna High Court in Bajrang Rat v. Ismail . We are of the considered view that if a claim petition has been dismissed for default on account of absence of the claimant, or an application filed for restoration of the claim petition dismissed for default the Claims Tribunal can resort to its inherent powers to restore back those petitions for adjudication on merits subject to the rider, namely, making out a good case for restoration/revival.
10. In the instant case we are handicapped to make any observation in regard to the earlier order dated 1.12.1990 as the said order has not been produced before us by the appellant nor has the appellant assailed its validity by preferring any appeal.
11. Consequently, we hold that this appeal is not maintainable which has been filed for remitting back Misc. Claim Petition No. 59 of 1990 which is not filed by the appellant. It is dismissed accordingly.