ORDER
1. Whether a Motor Accident Claims Tribunal Constituted u/S. 165 of the Motor Vehicles Act, 1988, (for short the Act), can impose cost while recalling an order purporting to have been passed under Order 9 Rule 7 of the Code of Civil Procedure, 1908, (for short the Code), is the short but significant question that falls for determination in this Civil Revision filed by opposite parties (the defendant) in a motor accident claim preferred by opposite parties 1 to 6 against the applicant, the owner of the vehicle and opposite party No. 7.
2. The facts need not detain much as the same are admitted. A claim petition" was filed by opposite parties 1 to 6 against the applicant, the owner of the vehicle and opposite party No. 7 the National Insurance Co. It was alleged that one Jagax Narain, the husband of opposite party No. 1 Smt. Nirmala Kumari . and father of opposite party No. 2 died in an accident caused by the truck belonging to applicant. A claim for a sum of Rs. 317600/-was made by opposite partiess 1 to 6 against the applicant and opposite party No. 7. The notices were issued to the applicant to appear and file written statement by 23-3-90 and 30-3-90 was fixed for framing issues. In spite of notice to the applicant, he did not appear on 23-3-90 nor on 30-3-90, rather he had come earlier to Etawah on 15-3-90 and engaged one Sri G.D. Misra, Advocate, but he did not inform the progress nor he appeared on the date fixed. Later on when the applicant enquired into and came to Etawah on 1-4-9 lit transpired that Sri G.D. Misra died and the applicant was not informed. The order to proceed ex parte against the revisionist was passed on 21-8-90. On 2-4-91 the applicant engaged another counsel Sri Ashok Kumar Tewari and moved an application purporting to be under Order 9 Rule 8 of the Code to recall the earlier order dated 21-8-90. On 3-4-91 the application of the applicant was allowed and he was directed to file written statement provided he deposits Rs. 25,000/ - in the court within a week. Against that order the present civil revision has been filed.
3. Sri R. K. Porwal, learned counsel for the applicant urged that the provisions of Order 9 Rules 7 & 8 of the Code would apply, the applicant personally was not at fault, rather his advocate did not appear nor informed the applicant and the applicant could not know about the date fixed or the progress in the case. Consequently the application for restoration ought to have been allowed without any cost or deposit of any amount and the Tribunal has exceeded its jurisdiction in allowing the application for restoration directing the applicant to file written statement on the condition that the applicant shall deposit Rs.25,000/-. In any case nominal cost could have been imposed.
4. Learned counsel for the opposite party, on the other hand, however, urged that u/S. 169 read with S. 176 of the Act the State Government could frame rules for the purpose of carrying into effect the provisions of Ss. 165 to 174 including the procedure and powers of Claims Tribunal. As the State of U.P. has already framed U.P. Motor Accident Claims Tribunal Rules, 1967, (for short the Rules), they would continue to apply till the new rules were framed and under Rule 21 the provisions of the Code, particularly Order 9 has been made applicable. Under Rule 16 in case on the date fixed some party appears and wants adjournment, the same can be allowed on payment of cost etc. Under Rule 7 of Order 9, on the date of adjourned hearing in case the defendant appears and shows good cause for non-appearance, the order to proceed ex parte can be recalled subject to payment of cost etc. or otherwise. Under the circumstances the Tribunal has passed order wholly within its jurisdiction and it did not commit any jurisdictional error.
5. Having heard learned counsel for the panics, the point for determination is as to whether the provisions of Order 9 applies, and if so, whether the Tribunal could impose cost or otherwise before recalling an order to proceed ex parte. The rules already framed u/S. 167 would continue to apply till fresh rules are framed. Rule 21 provides certain provisions of the Code including Order 9 to apply in proceedings before the Tribunal. Under Rule 6(1)(a) of Order 9, as added by C.P.C. Amendment Act, 1976, it has been provided that if it is proved that the summon was duly served, the court may make an order that the suit be heard ex parte. That order was passed prior to the date when the applicant moved an application to recall that order. It is to be recalled that this is a new provision. Prior to the C.P.C. Amendment Act, 1976 clause (a) of sub-rule (1) of Rule 7 provides that if it was proved that the summon was duly served, the court may proceed ex parte. Now under the amended clause (a) the court cannot proceed exparte at once, but must pass an order that the suit be proceed ex parte. It may further be stated that on account of failure of the defendant to appear and passing an order by the Court that the suit be heard exparte, would not disentitle the defendant from participating in the subsequent proceedings. Under Rule 6(1)(a) the date fixed appear to be first date and it is to be noticed that the word 'hearing' has been used in a technical sense as on the first date the suit cannot be heard. At the best, issues can be framed or if the plaintiff is more sincere some evidence can be led. There is slightly a different phraseology used under O.17. Under Rule 2 of Order 17 of the Code the provision is that on any day to which the hearing of the suit is adjourned, the parties or any of them "fail to appear", whereas under Rule 6(1) of Order 9 the expression is "does not appear" and that expression would have the same meaning as the expression "fail to appear" under O. 17. On behalf of the applicant it was not urged that he was not served with summons about the date fixed or he did not appear on account of some insurmountable difficulties, rather he had earlier engaged a counsel who did not inform him about the date fixed. In the affidavit filed in support of the stay application it has'not been stated that the counsel for the applicant was dead prior to the date fixed, rather it has been stated in para 5 of the affidavit that when the revisionist came to Etawah on 1-4-91 (Whereas the order directing the suit to proceed ex parte was passed on 21-8-90, much earlier), the applicant was informed that his counsel was dead and did not inform him about the progress in the suit. On 2-2-91 the applicant engaged one Sri Ashok Kumar Tewari, who filed restoration application to recall the order dated 21-8-90. It was the duty of the counsel engaged by the applicant to have informed him about the date fixed. In case the counsel died prior to the date fixed, that matter must have been stated in the affidavit filed by the applicant. But he did not do so. Every inaction or negligence of the counsel is not to be taken lightly or condoned.
6. In G. Ramegowda v. Special Land Acquisition Officer, Bangalore, AIR 1988 SC 897, their Lordships of the Supreme Court ruled that there is no general principle saving a party from mistakes of its counsel. If there is negligence deliberate or gross inaction or lack of bona fide on the part of a party or its counsel, there is no reason why the opposite party should be exposed to a time barred appeal. I am accordingly of the opinion that the inaction, in the present case on the part of applicant, is not to be taken lightly. The affidavit filed by the applicant in support of stay application also does not contain averments that the counsel has died prior to the date fixed.
7. There is another aspect of the matter that it was the first date fixed after service of summons on the applicant. It was his bound en duty to have appeared on the date fixed, even though he had engaged the counsel earlier. Engaging counsel earlier does not mean to absolve a party from appearing on a particular date fixed in acivil matter. The applicant was also to be blamed for his non-appearance or assigning any good cause for the same on the first date fixed in the case.
8. Rule 7 of Order 9 provides that on the date of adjourned hearing of suit, in case the defendant appears and shows good cause for his previous non-appearance he may be heard in answer to suit subject to payment of cost or otherwise as the court directs. The court has been given jurisdiction to pass an order either to recall the earlier order or to direct the plaintiff to appear and participate in the suit subject to payment of cost or otherwise. Consequently it could not be said that imposition of cost by the Tribunal or direction to the applicant to deposit a sum of Rs. 25000/- in the court within a week, was passed in excess of jurisdiction. In a case where the husband of opposite party No. 1, father of opposite party No. 2 minor son was crushed to death by the truck of the applicant and the claim for a sum of Rs. 3,70,600/- was made by the defendants, in case owner of the vehicle was directed to deposit a sum of Rs. 25,000/- within a week before the order for hearing the suit ex parte could be recalled, cannot be said to be passed by the Tribunal in excess of jurisdiction.
9. Under these circumstances, I am of the opinion that in view of Rule 21, the provisions of Order 9 of the Code including Rules 6, 7 and 8 were applicable and the impugned order directing the applicant to file his written statement only after he deposits a sum of Rs. 25000/-, cannot be said to be illegal or passed in excess of jurisdiction. Under S. 115 of the Code the interference by this Court is not as a matter of right, but it is discretionary. At the same time that discretion can be exercised only when the subordinate court has passed order in excess of jurisdiction, or has failed to exercise jurisdiction or acted illegally or with material irregularity. In the instant case none of the grounds mentioned u/S. 115 of the Code has been made out and the impugned order appears to be manifestly just.
10. In view of the premises aforesaid and applying the principles of Arstotatean and Baconian reasonings I am of the view that there is no justification for interference by this Court.
11. In the result, the present revision fails and it is dismissed. The interim stay dated 2-5-91, as extended subsequently, is vacated, There shall be no order as to costs.
12. Revision dismissed.