NATIONAL INSURANCE COMPANY LIMITED Vs. JAGDISH

JUDGEMENT

(1.) The present writ petition arises out of a peculiar situation and an order dtd. 26/10/2013, whereby the Court of Additional District Judge/Sessions Judge, Vikasnagar, Dehradun while exercising his powers in MAC Case No. 167 of 2013, Jagdish v. Ramnath, while deciding Issue No. 2 has held that the subsequent Suit, instituted by the claimant-respondent No. 1 would be tenable, would not be barred by Sec. 11 of the Code of Civil Procedure, irrespective of the fact that in an earlier proceeding filed by way of MACT No. 145 of 2007, Jagdish v. National Insurance Co. Ltd., which was arising out of the same accident dtd. 25/5/2007 and under the same circumstances and between the same set of parties, which was dismissed for want of prosecution under Order 9 Rule 8 of CPC on 10/11/2008.

(2.) It is the case of the petitioner that respondent/claimant seeking recall of the order dtd. 10/11/2008 has filed a restoration application, which was numbered as Miscellaneous Case No. 89 of 2008, which too was dismissed for want of prosecution on 27/8/2010.

(3.) Later on, a restoration application for restoration of order dtd. 27/8/2010 was preferred being Misc. Case No. 41 of 2011, Jagdish vs. National Insurance Co. Ltd. and others, wherein the application filed by respondent No. 1 herein has sought to set-aside the order dtd. 27/8/2010, passed in MACT No. 145 of 2017, Jagdish v. National Insurance Co. Ltd., by virtue of which the earlier restoration application being Misc. Case No. 89 of 2008 was dismissed in default. Admittedly, the subsequent order of dismissal of restoration application No. 41 of 2011 was an order, which was passed on merits after hearing the parties on 29/2/2012.