SAILINI PATEL Vs. MD RASHEED ALI

JUDGEMENT

(1.) This appeal is filed by the claimant against the order dtd. 8/11/2013 made in MVC No.01/2012 on the file of the Senior Civil Judge Humnabad, dismissing the petition for default under Order IX Rule 4 and 9 r/w 151 Civil Procedure Code.

(2.) It is the case of the appellant-claimant that he has filed MVC No.150/2009 as against the respondents for compensation on account of the accident occurred on 9/11/2008. The respondents filed written statement before the claims Tribunal and the matter was posted for evidence on 20/12/2011. On that day, when the case was called, the appellant could not appeared due to his illness and his counsel was engaged in another case in another Court. Therefore, the claim petition came to be dismissed for default. Subsequently, the claimant filed Miscellaneous petition to restore the order dtd. 20/12/2011 under Order IX Rule 4 and 9 r/w 151 CPC requesting the Court to restore the same on the ground that the original claim petition was dismissed for default on 20/12/2011 on the ground that the claimant or the counsel was not present on the day and he could not present due to his illness and his counsel was engaged in other Court. Therefore, the Court was dismissed the petition for non-prosecution. The absence of the claimant or his counsel on the date of the dismissal of the claim petition for default was not intentional nor deliberate. Therefore, he sought to set aside the order dtd. 20/12/2011. The respondents not appeared before the Miscellaneous Court and they have placed exparte.

(3.) In order to substantiate his claim, the claimant himself examined as PW.1 marked the documents Exs.P1 to P4. The trial Court while considering the Miscellaneous petition has framed the issue as under; (a) Whether the petition filed by the petitioner under Order 9 Rule 4 and 9 R/w 151 CPC deserves to allowed.