VIKRAM SINGH VERMA Vs. KASHMIRI DEVI

JUDGEMENT

(1.) THE principal question that requires my consideration in the instant miscellaneous appeal is as to whether civil miscellaneous appeal under Order 43, Rule 1, C.P.C. is maintainable against the order of Commissioner Workmen's Compensation, declined to set aside the ex parte award under Order 9, Rule 13, C.P.C.

(2.) BRIEF resume of the facts is that ex parte award came to be passed vide order dated September 16,1996 by the Commissioner Workmen's Compensation Bharatpur (in short the Commissioner) against the appellant Vikram Singh Verma (for short the appellant). The appellant moved an application under Order 9, Rule 13, C.P.C. for setting aside the ex parte award on the ground that no notice was served upon him and from the perusal of the record it came to the notice of the appellant that an endorsement was made by the postman on the envelope to the effect that the appellant refused to take the delivery of the registered envelope. It was averred in the application that the appellant was continuously ill with effect from February 25, 1996 to May 11,1996 and was taking medical treatment in Agra, therefore, during this period the question of service of any notice did not arise at all. The postman in village Patholi is the resident of the same village and he is having a political enmity with the appellant and, therefore, without tendering the notice made a false endorsement on the envelope. It was further pleaded that the deceased Sobran was never in the employment of the appellant and the appellant is not the employer of deceased Sobran. Deceased Sobran's date of birth was 1.2.1981 and, therefore, at the age of 14 years question of employment did not arise. The appellant came to know about the ex parte judgment on September 16,1997 from the Tehsil and immediately he took steps for getting the certified copy for setting aside the ex parte judgment. The learned Commissioner dismissed the application on the ground that he was not having jurisdiction to decide any application under Order 9, Rule 13, CPC vide the impugned order.

(3.) ON the other hand, Mr. D.C. Gupta, learned Counsel appearing for the respondents contended that no appeal is maintainable under Order 43, Rule 1, C.P.C. The only course which is open to the appellant is to file appeal under Section 30 of the Workmen's Compensation Act, 1923 (for short the Act). Reliance was placed on Praveen Industries and Ors. v. Sri Banawar Singh II (1990) ACC 180 (DB), Bashir Khan v. Ranger Social Vaniki and Ors. RLR 1994 (1) page 27, and Krishna Lime Works v. Presiding Officer 1988 (2) WLN 598.