Court No. - 4
In Re : Civil Misc. Delay Condonation Application No. 203318 of 2013.
Case :- FIRST APPEAL FROM ORDER DEFECTIVE No. - 958 of 2013 Appellant :- Ratan Kumar Agarwal Respondent :- The Presiding Officer, M.A.C.T. And 7 Others Counsel for Appellant :- Siddhartha Srivastava Counsel for Respondent :- Komal Mehrotra
Hon'ble Bala Krishna Narayana,J. Hon'ble Irshad Ali,J.
Heard Sri Siddhartha Srivastava, learned counsel for the applicants and Sri Komal Mehrotra, learned counsel for the respondent no. 3.
None has appeared on behalf of other respondents despite being served.
By means of this application, the applicants are seeking condonation of delay of about 2686 in filing this appeal against the judgement and award dated 29.11.2005 passed by M.A.C.T./Additional District Judge/Fast Track Court No. 4, Saharanpur in M.A.C. No. 49 of 2001 (Anurag Chaudhary and another Versus Ratan Kumar Agarwal and others) by which a sum of Rs. 6,86,200/- has been awarded against the applicants as compensation for the death of Mahendra Singh involving the vehicle owned by them.
The delay condonation application is supported by the affidavit of one Purushottam Agarwal who has descried himself as the brother of the applicants.
Counter and rejoinder affidavits have been exchanged.
Facts of the case are not in dispute. M.A.C. No. 49 of 2001 was filed by claimants-respondents, Anurag Chaudhary and Anupam Chaudhary claiming a sum of Rs. 10,00,000/- as compensation from the applicant for the death of their father Mahendra Singh in a road accident involving the vehicle of the applicants. The applicants were contesting the claim petition before the tribunal and they had engaged Sri Akhilesh Agarwal as their counsel and had also filed their written statements before the tribunal. As the Presiding Officer of the M.A.C.T., Saharanpur where the aforesaid claim petition was pending had retired in September, 2005 and no one had been posted in his place, Sri Akhilesh Agarwal, counsel of the claimants- appellants had informed them that as soon as the new Presiding Officer will be posted, he will inform them and till then they need not come to the Court. However, when a copy of the ex-parte judgement and award dated 29.11.2005 purporting to have been passed by the M.A.C.T./Additional District Judge/Fast Track Court No. 4, Saharanpur in M.A.C. No. 49 of 2001, which is impugned by the applicants in this appeal, was filed by the Insurance Company in another M.A.C. No. 101 of 2001 which was also being contested by the applicants, they for the first time came to know about the aforesaid ex-parte judgement and award passed in M.A.C. No. 49 of 2001.
A restoration application was filed by the applicants for setting aside the ex-parte award dated 29.11.2005 before the concerned tribunal on 15.02.2006. The tribunal rejected the application for setting aside the ex- parte award by it's order dated 23.02.2007.
The applicants challenged the order dated 23.02.2007 as well as the ex parte award dated 29.11.2005 before this Court by means of Civil Misc. Writ Petition No. 14167 of 2007 on 13.03.2007 in which this Court passed an interim order in favour of the claimants-appellants on 15.03.2007 staying the recovery proceedings pursuant to the ex-parte judgement and award dated 29.11.2005 subject to the claimants-appellants depositing 50% of the awarded amount within two months. On 3.5.2007, petitioner deposited 50% of the awarded amount of compensation pursuant to the interim order passed by the Writ Court. The applicants took steps for effecting service on the claimants-respondents and the Insurance Company by normal mode as well as through substituted service. The writ petition was finally disposed of on 28.5.2013 with liberty to the petitioner to avail any other remedy which may be available to them against the ex parte judgement and award dated 29.11.2005.
Thereafter, the applicant-appellant filed the instant first appeal from order along with an application under Second Proviso to sub Section (1) of Section 173 of Motor Vehicles Act, read with Section 5 of the Limitation Act for condonation of delay in filing the appeal before this Court on 17.7.2013.
Learned counsel for the applicants submitted that the applicants had done everything within their means to effectively contest the claim petition by engaging Sri Akhilesh Agarwal who is an Advocate of some repute, as their counsel and filing a written statement in M.A.C. No. 49 of 2001. Learned counsel for the applicants further submitted that as soon as the factum of M.A.C. No. 49 of 2001 having been decided ex parte by the M.A.C.T./Additional District Judge/Fast Track Court No. 4, Saharanpur by the impugned judgement and award, came to their knowledge they filed an application for setting aside the ex parte judgement and award before the tribunal concerned. After the application moved by the applicants for setting aside the ex parte judgement and award was dismissed by the tribunal by order dated 23.2.2007, the applicants challenged the order dated 23.2.2007 passed by the concerned tribunal by filing Criminal Misc. Writ Petition No. 14167 of 2007 in which an interim order was passed by this Court in favour of the petitioner.
He next submitted that the aforesaid writ petition remained pending before this Court till 28.5.2013 on which date it was finally disposed of by order passed on the same day giving liberty to the petitioner to avail any other remedy which may be available to them and thereafter, without any further delay the applicants filed the present appeal along with application for condonation of delay.
He further submitted that the applicants are not guilty of any latches and it cannot be said that they had remained indolent at any point of time. He lastly submitted that the applicants having satisfactorily explained the delay in filing this appeal, the delay condonation application is liable to be allowed.
Per contra Sri Komal Mehrotra, learned counsel appearing for the Insurance Company has submitted that the tribunal while rejecting the application moved by the applicants before it for setting aside the ex parte judgement and award dated 29.11.2005 had in it's order dated 23.2.2007 recorded a categorical finding of fact that Sri Akhilesh Agarwal, learned counsel engaged by the applicants for contesting the claim petition was present before the tribunal on which the ex parte judgement and award which is impugned in the instant appeal was passed ex parte and in view of the aforesaid finding, this delay condonation application cannot be allowed and is liable to be rejected.
We have heard the learned counsel for the parties present and perused the material brought on record.
We are of the view that parameters for considering an application for setting aside an ex-parte judgement and award and an application for condonation of delay are entirely different. The finding recorded by the tribunal in it's order dated 23.2.2007 regarding the applicants' having constructive knowledge of the date on which the ex parte judgement and award was passed may dis entitle the applicants from getting the ex parte judgement and award set aside but the aforesaid finding is wholly irrelevant for the purpose of deciding the delay condonation application and while considering the application for condonation of delay, the Court is required to examine whether cause assigned for the delay in filing the appeal is satisfactory or not.
We find that the applicants have satisfactorily explained the delay in filing the appeal against the ex parte judgement and award dated 29.11.2005 passed by M.A.C.T./Additional District Judge/Fast Track Court No. 4, Saharanpur in M.A.C. No. 49 of 2001. Moreover, the rules or procedure are designed to promote the ends of justice rather than to throttle the same.
Accordingly the delay of 2686 days in filing the appeal is condoned. The delay condonation application is allowed.
Office is directed to allot regular number to this appeal.
Order Date :- 22.2.2018/SA
Court No. - 4
Case :- FIRST APPEAL FROM ORDER DEFECTIVE No. - 958 of 2013 Appellant :- Ratan Kumar Agarwal Respondent :- The Presiding Officer, M.A.C.T. And 7 Others Counsel for Appellant :- Siddhartha Srivastava Counsel for Respondent :- Komal Mehrotra
Hon'ble Bala Krishna Narayana,J. Hon'ble Irshad Ali,J.
Admit. Issue notice.
Notice on behalf of respondent no. 3 has been accepted by Sri Komal Mehrotra.
We have been informed by the learned counsel for the appellant that in compliance of the order passed by this Court on 13.03.2007 in Civil Misc. Writ Petition No. 14167 of 2007, the petitioner has already deposited 50% of the awarded amount of compensation In view of the above, until ordered otherwise the execution of the impugned judgement and award shall remain stayed.
The claimants-respondents are permitted to withdraw 50% of the amount deposited by the applicant on their furnishing security to the satisfaction of the concerned tribunal.
Order Date :- 22.2.2018 SA