Court No. - 36
Case :- WRIT - C No. - 35582 of 2018 Petitioner :- Wahid And Another Respondent :- State Of U.P. And Another Counsel for Petitioner :- Raj Singh Counsel for Respondent :- C.S.C.
Hon'ble Mrs. Sunita Agarwal,J.
Heard learned counsel for the parties and perused the records.
The present petition is filed to challenge the orders dated 05.09.2017 and 13.09.2018 passed by the Motor Accident Claim Tribunal. The recall application moved by the opposite party no.2 for recall of the order dated 05.09.2017 has been rejected for non prosecution. By means of the order dated 05.09.2017, the opportunity to opposite party no.1 to cross examine PW-1 has been closed. The said order categorically records the absence of the opposite party to cross examine PW-1.
Learned counsel for the petitioner submits that the petitioner/opposite party cannot be blamed for non appearance or filing of the recall application with delay as the counsel engaged by the petitioner/applicant did not appear on 13.09.2018 which has resulted in dismissal of the recall application for non prosecution.
Submission is that a last opportunity may be granted to the opposite party namely the petitioner to press the recall application dated 13.09.2018 on merits, filed for recall of the order dated 05.09.2017.
Considering the said submissions, noticing the fact that the order dated 13.09.2018 for dismissal of the application was passed in absence of the opposite party no.2, a last opportunity is being granted to the opposite party no.2 namely the petitioners herein to press the said application so to make out the case for recall of the order dated 05.09.2017.
In view of the above, while setting aside the order dated 13.09.2018, restoring the recall application dated 13.09.2018 moved by opposite party no.2 to its original number, the matter is being remitted back to the Motor Accident Claim Tribunal, Hapur to decide the said application afresh.
It goes without saying that this Court has not entered into the merits of the claim of the petitioners or the order dated 05.09.2017. It is open for the court below to pass fresh order on the merit of the recall application after giving due opportunity to the opposite party to place their objections.
It is made clear that in case of non appearance or any adjournment on the part of the opposite party no.2 in pressing the application dated 13.09.2018 in future, it would be open for the court below to pass appropriate order.
Subject to the above observations and directions, the petition is disposed of.
Order Date :- 26.10.2018 Himanshu