ORIENTAL INSURANCE CO LTD Vs. BAIJNATH DASS

JUDGEMENT

(1.) THE Applicant (the fourth Respondent) prays for setting aside of the order dated 20.04.2007 and for rehearing of the Appeal on merits on the ground that the Applicant was getting treatment for brain tumor in Delhi and could not receive any notice issued by this Court. He was unaware of the Court proceedings. It is averred that in another matter (relating to this very accident in respect of other Claimants) a first Appeal was filed by the Applicant and the Appellant appeared as a Respondent in the Appeals No.113 and 121/2005. It is stated that the grounds taken by the Appellant in MAC. APP. No.259/2005 (the Appeal in which the C.M. APPL. has been filed) are afterthought. THEse have not been substantiated by any evidence. It is stated that the Applicant could not appear before the Court on account of non-receipt of notice by him and due to shifting of his residence to Delhi in order to obtain treatment for the brain tumor.

(2.) THE Application is opposed by the Respondent (the Appellant in Appeal No.529/2005 decided on 20.04.2007). It is denied that the Applicant was not served with the notice of Appeal. It is averred that even if it is assumed that the Applicant received any treatment, the same was only in the year 2010, as could be gathered from the documents filed along with the Application. It is pleaded that no cause has been shown for the Applicant's absence after service of notice of the Appeal and on the date of hearing when the order dated 20.04.2007 came to be passed.

(3.) THIS was only to give the background. The merits of the case, however, are not relevant for the disposal of the present Application, which is simply on the ground that the Appellant was prevented to appear at the hearing of the Appeal on account of sufficient cause. Rule 21 of Order XLI of Code of Civil Procedure is extracted hereunder: -