Municipal Corporation Of Delhi vs Mamta Kumari & Others
2011 Latest Caselaw 4665 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Date of Judgment: 21.09.2011


+            MAC Appeal No 21/2010 & CM Nos.1059-60/2010

MUNICIPAL CORPORATION OF DELHI      ...........Appellant
                 Through: Mr. Himanshu Upadhyay,
                          Advocate.

                   Versus


MAMTA KUMARI & OTHERS                           ..........Respondents
                 Through:           None.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

    1. Whether the Reporters of local papers may be allowed to
       see the judgment?

    2. To be referred to the Reporter or not?             Yes

    3. Whether the judgment should be reported in the Digest?
                                                         Yes

INDERMEET KAUR, J. (Oral)

1 This appeal has impugned the order dated 21.11.2009 vide

which it had dismissed the application of the petitioner/MCD

under Order 9 Rule 13 of the Code Civil Procedure (hereinafter

referred to as the 'Code') which application had been filed for

setting aside the Award dated 27.09.2007.

2 Record shows that on 17.04.2004, the deceased Sanjay

Kumar had suffered an accident at Khanpur Road pursuant to the

truck of the MCD which was being driven in a rash and negligent

manner by its driver; as a result of this impact, the deceased

sustained grievous injuries pursuant to which he succumbed to

the same. Claim petition was filed by his widow and minor

children. The respondent No. 1 did not contest the claim.

Respondent No. 1 was deleted from the array of the respondents

on 18.08.2004; the defence of respondent No. 2/MCD was struck

off on 30.03.2005 as they have not filed their written statement;

cost had also not been paid after the setting aside of the ex-parte

order dated 18.08.2004. This clearly shows the lackadaisical and

casual attitude of the Department. The plaintiff had examined five

witnesses. The defendant had not lead any evidence. Keeping in

view the entirety of the evidence adduced by the petitioner, the

award in the sum of Rs.11,38,000/- had been awarded in favour of

the petitioner. Thereafter an application under Order 9 Rule 13 of

the Code had been filed which (as noted supra) was dismissed on

21.11.2009. The Court had correctly noted that the provisions of

Order 9 Rule 13 of the Code are not applicable; it is not the case

of the respondent/MCD that they had not be served or were

prevented by sufficient cause from appearing or contesting the

proceedings; in fact the ex-parte order was passed against them

had been set aside subject to payment of cost but even then the

cost was not paid; written statement was not filed in time; the

court was constrained to strike off the defence of the

respondent/MCD.

3 In these circumstances, the application under Order 9 Rule

13 of the Code was not maintainable. The respondent/MCD had

full knowledge of the proceedings but for reasons best known to

it, it chose not to contest them. Record shows that the impugned

Award/judgment in no manner suffers from any infirmity; it is

based on the deposition of the witnesses and strictly in conformity

with their testimony. Appeal is without any merit.

4       Dismissed.




                                             INDERMEET KAUR, J.
SEPTEMBER 21, 2011
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