Hon'ble Vishnu Chandra Gupta,J.
Heard Shri Akhilesh Kumar Srivastava, learned counsel appearing on behalf of the appellant.
According to the note dated 17.8.2012 of the Private Secretary, an incorrect judgment was uploaded. There appears to be inadvertent mistake on the part of office. The order dated 7.8.2012 is recalled and we decide the appeal afresh as under :
1. Case called out. None appears for the private respondents, though notice has been served and according to the endorsement of the Registry, there is sufficiency of service. Mr. Vikram Soni appears for the respondent No.6. However, he submits that he was not a party before the tribunal. Needless to say that since the opposite party No.6 is not a party, it was not necessary for the appellant to implead him in the present appeal.
2. Motor Accident Claims Tribunal, Faizabad has delivered an ex parte award dated 1.5.2009 in MAC No.50 of 2007. After lapse of almost 25 days, the appellant filed an application under Order 9 Rule 13 CPC. The application was dismissed by the impugned order dated 20.3.2010, hence present appeal.
3. Before the tribunal, the appellant took plea that though he has engaged a counsel and paid fee to the lawyer but on the date fixed, he was not informed by his lawyer to appear before the tribunal. On account of lapse on the part of lawyer, the appellant could not appear and the tribunal delivered ex parte award on 1.5.2009. When the appellant came to know with regard to ex parte award on 10.5.2009, he contacted his counsel but failed to get satisfactory reply. Hence, an application was moved by the appellant before the tribunal under Order 9 Rule 13 C.P.C.
4. While rejecting the application, the tribunal took note of the fact that the appellant had not filed written statement within the specified period provided by the tribunal though he put in appearance on 9.4.2008. For the period of eight months, the appellant has not filed written statement. Hence, on 18.11.2008, the tribunal proceeded ex parte and decided the claim petition. The tribunal further observed that the appellant came to know regarding the ex parte award on 10.5.2009 but it took 16 days for him to file application under Order 9 Rule 13 CPC. The tribunal further opined that the appellant has not taken any action against the lawyer with regard to negligence committed by him. Once, the vakalatnama was filed by the appellant's counsel, then it was incumbent on the lawyer to inform the appellant. In case the lawyer was negligent in not informing the appellant to participate in trial, then appropriate action should have been taken against the lawyer by the appellant. Hence, the tribunal rejected the application filed under Order 9 Rule 13 CPC.
Order 9 Rule 13 CPC is reproduced as under :
13. Setting aside decree ex parte against defendants In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:
Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also:
1 [Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim.] 2 [Explanation.--Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside the ex parte decree.]
5. The aforesaid proposition contained in the Code of Civil Procedure with regard to setting aside ex parte decree or order provides that if the court is satisfied that the summon was not duly served or that the applicant was prevented by any sufficient cause from appearing when the suit was called for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:. The provision contained in Order 9 Rule 13 is meant to meet out the contingencies when a litigant is deprived of his lawful right to appear before the court or tribunal for certain unavoidable circumstances. What should be sufficient cause or what are the situations under which a litigant is prevented by any sufficient cause to appear before the court shall depend upon facts and circumstances of each case.
6. While dealing with application under Order 9 Rule 13, the court must bear in mind that on one hand it has to ensure that the process of law is not abused, on the other hand, it must ensure that the door of the courts is not closed for the litigants when they are prevented for sufficient cause to pursue their matter. Administration of justice is meant to impart justice to the litigants who approach the court. It does not mean to stop the process of law or dispensation of justice. Courts should be liberal while dealing with application filed under Order 9 Rule 13 C.P.C. The courts must also be cautious and take note with regard to ground reality of the country where ordinarily the litigants belonging to rural area do not dare to object the unfair action of the counsel or they do not gather courage to argue their own lawyer or approach the State Bar Council under Section 35 of the Advocates Act. The complicated process of law and time involved therein to take action against the erring lawyers ordinarily discourage the litigants to prosecute the lawyers who are negligent in discharge of their duty. In such situation, the burden shall be on the courts to ensure that justice is not denied to the litigants who approach them having full confidence in administration of justice that they will get their due rights.
7. Of course, it must be ensured that the absence of litigants during trial is not intentional or dilatory tactics has been adopted to prolong the litigation. In case under the facts and circumstances of the case, it is established that intentionally and deliberately, the party has absented from the court proceeding, then naturally, in such situation, application under Order 9 Rule 13 C.P.C. could be rejected.
8. Coming to the facts of the present case, the appellant took specific plea that his lawyer has not informed him. It is admitted fact on record that a vakalatnama was filed by the applicant's lawyer. He was pursuing the matter and why his lawyer has not appeared before the court on the date fixed is not borne out from the record. It was incumbent on the court to issue notice to the appellant's lawyer and call for explanation while deciding the application under Order 9 Rule 13 C.P.C.. Hands of the courts are not tied and the courts could have referred the matter to the State Bar Council for mis-conduct committed by the appellant's lawyer. Merely because the applicant has not taken any action, the application moved by the applicant could not have been rejected by the court.
9. In the present case, at the face of record, there appears to be fault on the part of the lawyer as after filing vakalatnama, he failed to appear before the court. The appellant came to know regarding ex parte decree on 10.5.2009. He moved application after lapse of sixteen days. The period of sixteen days does not seem to be a period which may raise doubt over the appellant's intention to prosecute the pending case. In view of above, we are of the view that under the facts and circumstances of the present case, the appeal is liable to be allowed.
10. Accordingly, the appeal is allowed. The impugned order dated 20.3.2010, passed by the Motor Accident Claims Tribunal, Faizabad as well as the impugned award dated 1.5.2009, passed in MAC No.50 of 2007 are set aside. The matter is remanded back to the tribunal. The parties shall appear before the tribunal on 30.8.2012. The tribunal shall decide the controversy afresh, expeditiously, say within a period of four months. The appellant shall ensure to appear before the tribunal to cooperate with the trial. Learned counsel for the appellant undertakes to file written statement before the tribunal on or before 10.9.2012. Let the written statement be filed accordingly. The record be sent by the registry to the District Judge, Faizabad within 10 days from today through special messenger. The amount deposited in this court shall be remitted to the tribunal which shall be subject to outcome of the claim petition.
The appeal is allowed accordingly.
Order Date :- 22.8.2012 kkb/