HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY CMA.No.582 of 2013 % 05.06.2014 Between:
# Shaik Saleema, W/o Late Shaik Gaddam Khasim and another . Appellant And:
$ APSRTC, Musheerabad, reptd by its Managing Director.
. Respondents < Gist:
> Head Note:
! Counsel for the appellants: Sri G.L.Narasimha Rao ^ Counsel for the respondent: Sri C.Sunil Kumar Reddy Standing Counsel for APSRTC ? Cases Referred:
NIL HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY CMA.No.582 of 2013 Date:05.06.2014 Between:
Shaik Saleema, W/o Late Shaik Gaddam Khasim and another.
…… Appellants And:
APSRTC, Musheerabad, reptd by its Managing Director.
…… Respondent Counsel for the appellants: Sri G.L.Narasimha Rao Counsel for the respondent: Sri C.Sunil Kumar Reddy Standing Counsel for APSRTC The Court made the following:
HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY CMA.No.582 of 2013 JUDGMENT:
This Civil Miscellaneous Appeal is filed against the order, dated 26.10.2012, in I.A.No.577 of 2012 in MVOP.No.1453 of 2008 on the file of the learned II Additional District Judge, Ranga Reddy District at NTR Nagar, Hyderabad.
A 24 year old widow and 5 year old son of the ill- fated- Shaik Gaddam Khasim are the appellants in the present appeal. The said Shaik Gaddam Khasim died in an accident involving a bus belonging to the Andhra Pradesh State Road Transport Corporation (for short ‘the Corporation’).
The appellants have filed MVOP.No.1453 of 2008 claiming compensation against the respondent for the death of the said Gaddam Khasim. The OP was dismissed for non-prosecution by the Court below by order, dated 28.12.2011. The appellants have filed I.A.No.577 of 2012 under Order IX Rule 9 C.P.C. for setting aside the dismissal order and restoration of the O.P. to file. The learned counsel for the respondent- Corporation filed a memo on 04.10.2012 before the Court below instead of filing a counter-affidavit. It was stated in the said memo that the I.A. filed by the appellants may be decided on merits according to law and in the interests of justice. The Court below has found exception to the conduct of the respondent-Corporation in not opposing the Interlocutory Application filed by the appellants for restoration of the O.P. and has dismissed the said I.A., by observing that though a liberal approach needs to be shown in deciding the applications of this nature, as the appellants failed to furnish any reasons whatsoever for their absence on 28.12.2011, it was not a fit case for setting aside the dismissal order.
In my opinion, the Court below was oblivious of the ground realities. Appellant No.1 is the young widow and appellant No.2 is the minor son of the deceased, who was probably the sole bread winner of the family. While the Courts should not decide cases on misplaced sympathies, they (the Courts) at the same time, must have due concern for the nature of the cases and the circumstances in which the parties are placed. In a case involving the death of the head of the family, it is not difficult to imagine the plight of his family members. Their whole life would have been thrown into shambles and they must be wading through the darkness unleashed on them by the cruel fate in the form of taking away the life of their mentor. This was the obvious reason why even the learned counsel for the respondent-Corporation has taken pity on the appellants and did not advice filing of a counter-affidavit opposing the above-mentioned I.A. Instead of understanding this gesture on the part of the learned counsel for the respondent-Corporation in a right spirit, the Court below has made an uncharitable observation against the respondent for not opposing the I.A. filed by the appellants.
The matters of this nature call for a humane approach by the Courts. Failure to give the reason in the affidavit for non-appearance of the counsel or the parties has to be basically attributed to the failure of the counsel. In a case, where the parties are a young widow and a minor, the Court below failed to realize that dismissal of the O.P. for default would for ever deny the appellants of their legitimate right to pursue the litigation for compensation.
After all, a vial of compassion is an inseparable component of the potent drug of judicial discretion.
Sri C.Sunil Kumar Reddy, the learned Standing Counsel for the respondent-Corporation, submitted that for no fault on the part of the Corporation, it will be mulcted with the liability of payment of interest, from October, 2012 till today, in the event, the decree is passed in the O.P.
I find force in this submission of the learned counsel. Though the Corporation was fair enough in not opposing the I.A. filed by the appellants, the Court below has declined to restore the O.P. to file. Therefore, for no fault on the part of the Corporation, it cannot be saddled with the liability of payment of interest. As the dismissal of the O.P. was attributed to the failure of the appellants and their counsel to appear before the Court, the appellants cannot be allowed to take undue advantage of their own fault.
Sri G.L.Narasimha Rao, the learned counsel for the appellants, fairly submitted that his clients will waive the interest for the period between 26.10.2012 and today.
For the above-mentioned reasons, the impugned order is set aside and I.A.No.577 of 2012 is allowed. The appellants shall not be entitled to any interest for the period between 26.10.2012 and 05.06.2014, in the event any compensation is awarded to them in the MVOP. The Court below is directed to dispose of MVOP.No.1453 of 2008 within a period of three months from the date of receipt of a copy of this order.
05th June, 2014 Note:
LR copies to be marked. B/o
DR
JUSTICE C.V.NAGARJUNA
REDDY