MAHESH Vs. UPANT

JUDGEMENT

(1.) THIS petition under Art. 227 of Constitution of India, is directed against order dated 17.8.2004 passed by 2nd MACT Mhow in Claim Case No. 71/04. By order impugned application filed by respondent 3 herein (Insurance Company) under O. 9 R. 7 of the Civil Procedure Code has been allowed and ex parte proceedings ordered against respondent 3 herein was recalled. Petitioner herein lodged a claim for compensation of Rs. 15,00,000/- (fifteen lakhs) before the Tribunal for alleged permanent disability sustained by him in a road accident took place on 27.2.2004. Shorn of verbiage, it is relevant to point out that learned Claims Tribunal proceeded ex parte against Insurance Company on 7.8.2004. On 16.8.2004 Respondent 3 Insurance Company moved application to recall ex parte proceedings. After getting reply to said application and hearing arguments, learned Claims Tribunal by order impugned allowed application and recalled ex parte proceedings. Grievance of petitioner is that on 16.8.2004 learned Claims Tribunal heard ex parte final arguments and posted the matter for delivery of Award on 19.8.2004. Behind the back of petitioner learned Claims Tribunal not only entertained the application under O. 9 R. 7 but allowed the same. According to learned counsel once matter is posted for delivery of final judgment/award, Court below had no jurisdiction to entertain application under O. 9 R. 7. In this connection learned counsel for petitioner invited attention to the portion of order sheet dated 16.8.2004 which has been scored out by Claims Tribunal.

(2.) IN reply Shri Jindal, learned counsel appearing for Respondent 3 submitted that case was not posted for delivery of final Award. According to him at the stage of final argument application under O. 9 R. 7 was filed and the Court below had jurisdiction to entertain said application. In this connection learned counsel for Respondent 3 placed reliance on 1990 MPJR SN 64 (Smt. Kalawati v. Shri Jagilish Prasad). It was also pointed out that a bare perusal of order sheet recorded on 16.8.2004 reveals that learned counsel for petitioner participated in later on proceedings without any protest and after decision has gone against petitioner, he could not be permitted to turn around to assail the validity of the same. It was also contended by learned counsel for Respondent 3 that petitioner is liable to be prosecuted in view of provisions contained in S. 195 of the Criminal Procedure Code for having placed reliance on forged document in support of his claim for Award of compensation. I have heard learned counsel appearing for parties at length. Perused the material available on record.

(3.) THUS , it is clear that case was not posted for delivery of final Award so as to render the Tribunal without any jurisdiction to entertain application under O. 9 R. 7 as contended by learned counsel for petitioner herein. After going through the material there is no doubt in the mind of this Court that the Tribunal had not closed case for final Award though order sheets were recorded in slipshod manner. Once it is held that case was not closed for delivery of judgment/award, then the Tribunal had jurisdiction to entertain application under O. 9 R. 7. There is no contention that Claim Tribunal committed any irregularity in exercise of jurisdiction while deciding application under O. 9 R. 7. The only objection which has been urged is that the application was not maintainable once case was closed for final order. It has already been held above that case was not closed for final orders and at the stage of final arguments, application was moved on behalf of Respondent 3 herein under O. 9 R. 7. Thus, I find no force in the submission of learned counsel for petitioner with regard to tenability of application under O. 9 R. 7 of the CPC which has been disposed of by order impugned. To this extent in the considered opinion of this Court, order impugned does not call for any interference on that score.