PHOOLWATI Vs. DEVENDER

JUDGEMENT

(1.) This application has been preferred by the applicants/petitioners who are the wife and son of the deceased Late Ld.Col.Om Prakash seeking review of judgment dtd. 11/12/2017 passed by this Court whereby the appeal against the impugned judgment-cum-award dtd. 12/9/2012 passed by the learned Presiding Officer, Motor Accidents Claims Tribunal-II, Dwarka Courts, New Delhi [Presiding Officer] was dismissed on merits.

(2.) Learned counsel for the applicants/petitioners has urged that neither the appellant nor his counsel was present when the matter was heard in the appeal by this Court on 11/12/2017 and reference is invited to decision by the Supreme Court in SLP No.23809/2023 tilted as Benny D' Souza and Ors. v. Melwin D"Souza decided on 24/11/2023 in which, having regard to the provisions of Order XLI Rule 17 CPC, it was held that if the appellant does not appear when the appeal is called for hearing, the Court can only dismiss the appeal for non-prosecution and it cannot proceed to decide the appeal on merits.

(3.) At the outset since on 11/12/2017 neither the appellant nor his counsel was present, there is merit in the present review petition. However, the present review petition is accompanied with an application for condonation of delay of 533 days. Condonation is sought on the ground that the daughter-in-law of the applicant/appellant No.1 had lodged some false cases against her and she was suffering from spine problems since May 2017 besides being a patient of hypertension, and therefore, she could not pursue the present appeal. However, there is no explanation afforded as to why the son who is applicant/petitioner No.2 could not seek review of the impugned order of this Court dtd. 11/12/2017 well in time.