Gujarat High Court
Surajbhai Munishwar Verma vs Baldevsing Valising Pradising ... on 13 January, 2023
Bench: Niral R. Mehta
C/SCA/486/2022 ORDER DATED: 13/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 486 of 2022
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SURAJBHAI MUNISHWAR VERMA
Versus
BALDEVSING VALISING PRADISING SEJA (DELETED)
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Appearance:
MR PARESH M DARJI(3700) for the Petitioner(s) No. 1
for the Respondent(s) No. 1
MR RATHIN P RAVAL(5013) for the Respondent(s) No. 3
NOTICE UNSERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 13/01/2023
ORAL ORDER
1. By way of this petition under Articles 226 / 227 of the
Constitution of India, the original claimants seeks to challenge
the judgment and order dated 30.7.2021 passed below Exh.12
by the learned 9th Additional District and Sessions Judge,
Ahmedabad (Rural) at Mirzapur in in MACMA No.287 of 2019
in MACP (Claim) No.1295 of 203, whereby the learned
Tribunal has rejected the delay condonation application in
preferring the restoration application.
2. Brief facts, as can be gathered from the record, are as
under :
2. The petitioner - claimant has preferred claim petition
being MAC Petition No.1295 of 2003 for the compensation of
Rs.2 lakhs for the injuries received in a vehicular accident on
C/SCA/486/2022 ORDER DATED: 13/01/2023
30.8.2003. As it appears, the petitioner is a labourer and
permanent resident of State of Bihar. However, for the
purpose of labour work, came to reside in State of Gujarat.
Since the petitioner could not remain in touch with the
concerned Advocate after filing of the claim petition because
of his labour activity, he could not give proper instructions
and evidence to his Advocate. Therefore, the Advocate filed a
pursis at Exh.35 dated 14.4.2018 seeking permission, inter-
alia, to withdraw the said claim petition with a liberty to
revive the same.
2.2 The learned Tribunal, vide order dated 24.2.2018,
permitted to withdraw the claim petition with a liberty to
revive the same.
2.3 The petitioner states that somewhere in the year 2019,
the petitioner could able to contact the concerned Advocate
and inquired about his claim petition. The learned Advocate
has informed the petitioner about the outcome of the claim
petition. Thus, the petitioner - claimant requested the
concerned Advocate to do the needful for revival of the claim
petition.
2.4 The learned Advocate, upon instructions of the
petitioner, moved an application for restoration of the claim
petition along with an application for condonation of delay of
295 days.
2.5 However, the learned Tribunal has dismissed the said
application for condonation of delay in filing restoration
C/SCA/486/2022 ORDER DATED: 13/01/2023
application, vide judgment and order dated 30.7.2021.
2.6 Being aggrieved and dissatisfied by the aforesaid, the
present claim petition has approached this Court by way of
present petition.
3. I have heard Mr.Paresh M. Darji, learned counsel for the
petitioner and Mr.Rathin P. Raval, learned counsel appearing
for the respondent No.3 - Insurance Co.
4. Mr.Paresh M. Darji, learned counsel, submitted that the
impugned judgment and order passed by the learned Tribunal
in not condoning the delay is highly prejudicial to his right of
seeking claim and thereby, same deserves to be quashed and
set aside. Mr.Darji submitted that the view taken by the
Tribunal is highly hyper technical and thus, the same deserves
to be quashed and set aside.
4.1 Mr.Darji submitted that the learned Tribunal should
have appreciated that the original claim petition was
withdrawn with a liberty to revive the same. Therefore, not
condoning the delay for restoration of the claim petition is
against the liberty reserved by the learned Tribunal vide its
judgment and order dated 22.4.2018. Mr.Darji submitted that
as such, application for condonation of delay is not required
because the permission was already reserved by the learned
Tribunal at the time of disposing the main claim petition.
However, since the learned Advocate appearing before the
Tribunal has filed the delay condonation application, the
Tribunal should have condoned the same by taking lenient
C/SCA/486/2022 ORDER DATED: 13/01/2023
view. Making above submissions, Mr.Darji urged this Court to
allow the petition as prayed for.
5. Per contra, Mr.Rathin P. Raval, learned counsel
appearing for the respondent No.3 - Insurance Co., has
vehemently opposed the present petition. Mr.Raval contended
that the order of not condoning the delay is absolutely
justified and thereby, present petition may not be entertained.
5.1 Mr.Raval submitted that delay is not automatically to be
condoned. He further submitted that so as to condone the
delay, sufficient cause of delay required to be narrated in the
delay condonation application. He, however, submitted that
no cause was stated by the petitioner in the delay condonation
application and thereby, the learned Tribunal has rightly
rejected the same. Making above submissions, Mr.Raval
urged this Court to dismiss the petition.
6. Having heard the learned counsels appearing for the
respective parties and having considered the evidence
produced on record, short questions that fall for consideration
of this Court are (i) whether in the facts and circumstances,
delay condonation application as preferred by the claimant so
as to restore the claim petition was in any way required? and
(ii) whether the impugned order passed by the learned
Tribunal is justified?
7. So as to consider the first question, it would be apt to
note that the main claim petition being MAC Petition No.1295
of 2003 was permitted to be withdrawn with a condition to file
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afresh. Meaning thereby, the said claim petition was disposed
of conditionally. It is further pertinent to note that said claim
petition was neither dismissed for default nor was disposed of
on merits. Thus, in my view, Limitation Act as applicable to
the provision of Review would not be as such applicable.
Additionally, if the order dated 22.4.2018 is seen, it would
appear that it was an order simplicitor in terms of withdrawal
pursis with a condition to revive the same. While passing the
said order, the learned Tribunal has not stated as to within
what time, the right of reopening of the case to be exercised.
In view of the aforesaid discussion, in my considered opinion,
the condonation of delay in preferring restoration itself was
not required. Thus, accordingly I answer the first question.
8. So far as the second question is concerned, in my
considered opinion, the view taken by the learned Tribunal is
a kind of very hyper technical in nature. Assuming for a
moment that an application for condonation of delay was
required to be filed, in that event, in my opinion, the learned
Tribunal should have dealt with the said application with
leniency. I say so because the Motor Vehicles Act is a social
welfare Legislation and the rules of limitation are not meant
to destroy the rights of parties. The need of the society is that
there should be justice oriented approach and the application
should not be rejected only on the ground of technicalities. I
answer to the second question accordingly.
9. In view of the aforesaid discussion, the present petition
is allowed. The impugned judgment and order dated
30.7.2021 passed below Exh.12 in MACMA No.287 of 2019 by
C/SCA/486/2022 ORDER DATED: 13/01/2023
the learned 9th Additional District and Sessions Judge,
Ahmedabad (Rural) at Mirzapur, is hereby quashed and set
aside. The delay of 295 days is hereby condoned and it is
further directed to the concerned learned Tribunal to consider
the restoration application in connection with MACP (Claim)
No.1295 of 2003 as expeditiously as possible, but not later
than 2 months from the date of receipt of writ of this court.
10. It is, however, clarified that the petitioner shall not be
entitled to the interest during the time he extended no
cooperation.
11. There shall be no order as to costs.
(NIRAL R. MEHTA,J)
V.J. SATWARA
