HEMANTBHAI SUNDARBHAI RATHOD Vs. JIVABHAI BHALABHAI BHARWAD

JUDGEMENT

(1.) Mr. Hiren Modi, learned advocate for the appellants submitted that MACP no.76/2016 filed under Sec. 163A of the Motor Vehicles Act, 1988 came to be dismissed on 1/8/2022. Mr. Modi submitted that the learned Tribunal while dismissing the petition had observed that inspite of calling the matter several times, neither the advocate for the applicants remained present, nor any application was moved for adjourning the matter and on perusing the Rojnama, the learned Tribunal came to observe that since several occasions, the matter is adjourned for the evidence of the applicants and lastly, application Exh.16 dtd. 21/4/2022 was moved on the ground that the applicants have shifted to new address and only after obtaining new residential address, evidence of the applicants could be given which came to be granted and thereafter, neither the applicant remained present to lead evidence, nor any application was moved for adjournment. The learned Tribunal observed that inspite of giving reasonable opportunity, the claimants have miserably failed to lead the evidence since the issues were framed. Advocate Mr. Modi submitted that dismissal, without observation on merits of the Tribunal itself, suggests that it was for non- prosecution and none of the issues have been answered on merits while the Tribunal thought it fit to dismiss the claim petition on the ground of absence of cogent evidence substantiating the claim petition.

(2.) Mr. Modi submitted that the Restoration Application was moved being MACMA no.284/2022 contending that on the day when the application came to be dismissed, the advocate was unwell and therefore, could not remain present before the Tribunal to even move for adjournment and had also further urged that inadvertently, he could not remain present before the Court since was having matters before another Court and on the date of dismissal, the applicants were out of station to attend death rituals. Mr. Modi submitted that inspite of bringing the fact to the notice of the Court, the learned Tribunal dismissed the Restoration Application observing that the dismissal was not for non- prosecution, but was on merits.

(3.) Referring to the decision in the case of Bharatbhai Narsinghbhai Chaudhary & Ors. v. Malek Rafik Malek Himmatbhai, reported in 2011 (2) GLR 1324, Mr. Modi submitted that both the orders of rejection are prima facie wrong since the learned Judge should not have dismissed the matter without observing the merits of the case, while the order of dismissal of the Restoration Application is also not consistent since the very reasoning in the dismissal order shows that it was not decided on merits, but was dismissed on the ground of non-appearance of the advocate and the applicants.