JAYANTIBHAI PARBATBHAI PARMAR Vs. RABARI GOVINDBHAI SHANKERBHAI

JUDGEMENT

(1.) Mr. Yatin Soni, learned advocate appearing for the appellant submits that the claimant has challenged the order dtd. 25/1/2011 dismissing MACP no.1700 of 2004 for non- prosecution on merits. Mr. Soni submits that thereafter, the appellant had filed restoration application being MCA no.896 of 2019 with delay condonation application on 15/11/2019, but the said delay condonation application was dismissed on 16/12/2019 on the ground that MACP was dismissed on merits and therefore, restoration application is not maintainable.

(2.) Mr. Soni submits that the dismissal of the MACP is erroneous in itself since no claim petition can be dismissed without deciding the matter on merits. Mr. Soni submits that dismissal of the claim petition is without any fault of the claimant. According to Mr. Soni, the Tribunal ought to have issued notice to the appellant in case his advocate was not remaining present in the matter. It is further submitted that initially, the matter was instituted in 2011 at Nadiad. It is stated that Kheda District was divided vide Legal Department, Gandhinagar notification no. GK/13/2006/PRCH 1097/VIP- 247-D (PART VI) from 19/3/2006 and all the matters pertaining to Anand District were transferred to Anand Court from Kheda, but the present matter was not transferred and the advocate was under bonafide impression that as per the notification, the matter would not have territorial jurisdiction and would be transferred.

(3.) Considering the submissions made and the documents along with the appeal memo, this Court does not find any reason to issue any notice in view of the judgment in the case of Bharatbhai Narsinghbhai Chaudhary & Ors. Vs. Malek Rafik Malek Himantbhai Malek & Ors., reported in 2011 (2) GLR 1324. Here in this case, MACP no.1700 of 2004 came to be dismissed on 25/1/2011. It is 10 line of brief order which could be construed as order of dismissal for want of prosecution. The observation in the order is that the matter is pending since the year 2004. No documentary evidence has been produced to show the injuries sustained by Rabari Govindbhai Shankarlal and Chimanbhai Punambhai Thakore in the accident who are owner and driver and no evidence has been produced to show that they are the owner and driver and inspite of often issuance of summons, they have not remained present in the Court. The issues were framed on 11/1/2011 and thereafter, on the date of dismissal, they have not come forward to give any deposition and further no documentary evidence has been produced to show whether they had sustained the injuries. Under that circumstances, the claim petition was dismissed.