Delhi High Court
Smt. Bimla And Ors. vs Sh. Sukhvinder Singh And Ors. on 11 July, 2002
Equivalent citations: 99 (2002) DLT 427, 2002 (64) DRJ 198
Author: R Chopra
Bench: R Chopra
JUDGMENT
R.C. Chopra, J.
1. The appeal is directed against an order dated
23.11.2000 passed by learned MACT by which the
appellant's application under Order 9 Rule 9 read with
Section 151 of the CPC was dismissed and the prayer for
restoration of the petition which was dismissed in
default on 02.12.1993 was declined.
2. The facts relevant for the disposal of the
appeal, briefly stated, are that the appellants
petitioners being the legal heirs of deceased Ajmer
Singh had filed a petition under Section 110A of the
Motor Vehicle Act claiming compensation on account of
death of deceased Ajmer Singh in a road Accident on
29.12.1982. . The petition was filed in the year 1983.
The appellants-petitioners led their evidence and the
petition was listed before MACT for respondent's
evidence and final arguments on 2.12.1993 on which date
it was dismissed in default as none appeared on behalf
of the appellants. On 29.4.1994 the appellants moved an
application under Order 9 Rule 9 read with Section 151
CPC pleading that on 2.12.1993 appellant No. 1 who is an
illiterate lady had come to the court and had gone back
under an impression that the case had been adjourned to
16.5.1994. However, on 28.4.1994 when her Counsel went
for inspection of file for preparing arguments, he came
to know that the petition had been dismissed in default
and as such the application for restoration was moved on
29.4.1994. It was pleaded that dismissal in default on
2.12.1993 was on account of the heavy rush in the Court
and the appellant-petitioner No. 1 not being able to get
her presence marked. She inadvertently noted the next
date as 16.5.1994. The absence was neither intentional
nor deliberate and thus there was sufficient cause for
the restoration of the petition.
3. The application was opposed by the respondents on
the ground that none had appeared on behalf of the
appellant on 2.12.1993 and since the application had
been moved belatedly and beyond the period of 30 days
there were no good grounds for the restoration of the
petition. Learned MACT vide the impugned orders refused
to restore the claim petition on the ground that
application for restoration was beyond limitation
prescribed by Article 122 of the limitation Act and
there were no grounds for condensation of delay.
4. I have heard learned counsel for the appellants
and learned counsel for the respondents. I have gone
through the records.
5. There is no dispute about the fact that the calim
petition was filed in the year 1983 and till 02.12.1993
when the petition was dismissed in default the
appellants-petitioners were pursuing it vigorously and
had even completed their evidence. Some of the
appellants-petitioners were minors even and the petition
was being persued on their behalf by their
mother/natural guardian. The plea raised by the
appellants in their application under Order 9 Rule 9
read with section 151 CPC was that 28.4.1994 only
they had come to know that the petition had been
dismissed in default and as such they moved an
application for restoration of 29.4.1994 itself. A
photo copy to the file of the counsel was shown to the
Court according to which after 2.12.1993 the next date
was recorded as 16.5.1994. It shows that the plea of
the appellants in regard to the presence of appellant
No. 1 on 2.12.1993 and her bonafide mistake in regard to
impression that the case had been adjourned to 16.5.1994
was genuine. It cannot be said that there was any
willfull or deliberate default on the part of the
appellants in appearing before the Court on 2.12.1993.
This Court, therefore, is of the considered view that
there were good and sufficient grounds for the
condensation of delay and restoration of the petition and
the learned MACT was not justified in declining the
prayer of the appellants for the restoration of the
prayer of the appellants for the restoration of the
petition.
6. The appeal is, therefore, allowed. The impugned
order dated 23.11.2000 is set aside and the petition is
restored to its original number. Let the petition be
proceeded further in accordance with law.
7. The Trial Court file be sent back immediately.
