GOVIND PRASAD KESARI Vs. RANI SINGH AND OTHERS

JUDGEMENT

(1.) This first appeal from order is directed against the order dated 10.10.1991 passed by the District Judge, Mirzapur rejecting the application of the appellant for setting aside the ex-parte award dated 7.2.1991 on the ground that the application was barred by time.

(2.) Heard learned counsel for the parties and also perused the orders of the courts below. The relevant facts are that a claim petition under the provisions of the Motor Vehicles Act, 1988 had been filed and the appellant had filed his written statement through a counsel. The evidence of the claimants had been recorded on several dates and thereafter the occasion came to record the evidence of the Insurance Co. and the appellant. It appears that on the dates fixed the appellant did not appear and did not lead any evidence with the result that ex-parte award was passed on 7.2.1991. Admittedly, the appellant applied for certified copy on 13.2.1991 and the appellant preferred an appeal against the award sometime in the month of March, 1991. It is alleged that later on the appellant met his counsel at Allahabad in July, i991 who advised him that an application for setting aside the ex-parte decree should also be filed. Thereafter on 24.7.1991 the appellant moved an application for setting aside the ex-parte decree. The claimant-respondents objected to the same and it was contended that the application was beyond time and, therefore, cannot be allowed.

(3.) The Tribunal came to the conclusion that at least on 13.2.1991 when he applied for certified copy of the order, he must have acquired the knowledge of the ex-parte award. The application was moved on 24.7.1991 and it was obviously barred by time. Appellants explanation for the delay was that he was advised by the counsel at Allahabad only on 23.7.1991 and, therefore, no application could be moved by him earlier. We are not impressed by the argument. As observed by the Tribunal, the appellant has not given any explanation for not moving the court during the period from 13.2.1991 to 11.3.1991 and there is no explanation forthcoming his side as to what prevented him from filing the application during this period. Possibly the reason may be that the counsel had not advised him about it. A copy of the affidavit filed in support of the application for setting aside the ex-parte award has been filed with the affidavit in support of the stay application. The allegation made therein is that Sri P.N.Gupta, counsel for the appellant, had advised him that he may be given the right to do pairavi in the case on contract and the appellant need not to come to court at all. Sri Gupta, it appears, had not been acting merely as an advocate of the appellant but was also his pairokar under the alleged contract. This kind of contract is void being against public policy and the appellant cannot derive any benefit from it. We fail to understand how possibly can any Advocate undertake to contest the claim petition in the absence of the party in the trial court where recording of oral testimony of the appellant may be essential. All these allegations appear to have been made only for the purpose of getting rid of the ex-parte award. Even the affidavit of the counsel was not filed before the Tribunal.