BIMLA Vs. SUKHVINDER SINGH

JUDGEMENT

(1.) The appeal is directed against an order dated 23.11.2000 passed by learned MACT by which the appellant's application under Order 9 Rule 9 read with Section 151 of the Code of Civil Procedure, 1908 was dismissed and the prayer for restoration of the petition which was dismissed in default on 2.12.1993 was declined.

(2.) The facts relevant for the disposal of the appeal, briefly stated, are that the appellants-petitioners being the legal heirs of deceased Ajmer Singh had filed a petition under Section 110A of the Motor Vehicle Act claiming compensation on account of death of deceased Ajmer Singh in a road accident on 29.12.1982. The petition was filed in the year 1983. The appellants-petitioners led their evidence and the petition was listed before MACT for respondent's evidence and final arguments on 2.12.1993 on which date it was dismissed in default as none appeared on behalf of the appellants. On 29.4.1994 the appellants moved an application under Order 9 Rule 9 read with Section 151, Code of Civil Procedure, 1908 pleading that on 2.12.1993 appellant No. 1 who is an illiterate lady had come to the Court and had gone back under an impression that the case had been adjourned to 16.5.1994. However, on 28.4.1994 when her Counsel went for inspection of file for preparing arguments, he came to know that the petition had been dismissed in default and as such the application for restoration was moved on 29.4.1994. It was pleaded that dismissal in default on 2.12.1993 was on account of the heavy rush in the Court and the appellant petitioner No. 1 not being able to get her presence marked. She inadvertently noted the next date as 16.5.1994. The absence was neither intentional nor deliberate and thus there was sufficient cause for the restoration of the petition.

(3.) The application was opposed by the respondents on the ground that none had appeared on behalf of the appellant on 2.12.1993 and since the application had been moved belatedly and beyond the period of 30 days there were no good grounds for the restoration of the petition. Learned MACT vide the impugned orders refused to restore the claim petition on the ground that application for restoration was beyond limitation prescribed by Article 122 of the Limitation Act and there were no grounds for condonation of delay.