Somabhai Ramsinh Bariya vs Yusuf Moizbhai Pilotwala
2023 Latest Caselaw 5414 Guj

     C/SCA/11530/2023                                     ORDER DATED: 11/07/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 11530 of 2023

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                          SOMABHAI RAMSINH BARIYA
                                   Versus
                          YUSUF MOIZBHAI PILOTWALA
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Appearance:
MR NISHIT A BHALODI(9597) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                  Date : 11/07/2023

                                   ORAL ORDER

1. Mr. Bhalodi submitted that after withdrawing

Special Civil Application no.12153/19 on

26.7.2019 since the petitioner had sought

permission to file appropriate application

before the Tribunal, the matter came to be

disposed of as withdrawn. Mr. Bhalodi

submitted that Special Civil Application was

filed since MACP no.832/17 came to be

dismissed for default while after withdrawing

Special Civil Application no.12153/19, under

the liberty so granted, MACMA no.132/21 was

moved before the MACT (Aux), Dahod at Limkheda

C/SCA/11530/2023 ORDER DATED: 11/07/2023

under Order 9 Rule 13 of the CPC for

restoration of the claim petition.

2. Referring to the judgment in the case of

Bharatbhai Narsinghbhai Chaudhary & Ors. v.

Malek Rafik Malek Himmatbhai, reported in 2011

(2) GLR 1324, it is submitted that the Court

had no power to dismiss the claim petition

without deciding the case on merits and

secondly even after the dismissal, if any

restoration application is preferred, then the

Tribunal should allow such application and

restore the claim petitions so as to fortify

the object of the benevolent legislation.

3. In the case of Bharatbhai Narsinghbhai

Chaudhary & Ors. v. Malek Rafik Malek

Himmatbhai, reported in 2011 (2) GLR 1324, the

Court has observed that the Tribunal has no

power to dismiss the claim petition for

default. It would be incumbent upon the

Tribunal to issue a notice to the claimants

C/SCA/11530/2023 ORDER DATED: 11/07/2023

and the Advocates appearing on record after

framing of the issues for providing the

Affidavit in the form of examination-in-chief

supported by the documents.

4. It is necessary to reproduce relevant part of

the decision in the case of Bharatbhai

Narsinghbhai Chaudhary (supra) which is as

under:-

"A District Judge, who functions as a Claims Tribunal, is not only within the administrative control of the High Court, but also subordinate to it under Section 115 of the Code. A Claims Tribunal is a 'Court' although with limited jurisdiction and not a mere 'Tribunal'. The powers of appeal given to the High Court under the Act against the decision of the Tribunal constituted under the Act, will definitely lead to conclusion that the said Tribunal is subordinate to the High Court and the nomenclature given to the Motor Vehicles Tribunal that, it is a Tribunal, will not take it out of the purview of the Civil Court.

(Para 5)

Under Rule 3, therefore, even if, neither party appears when the suit is called for hearing, it is not compulsory for the Court to dismiss

C/SCA/11530/2023 ORDER DATED: 11/07/2023

the suit. The Court may adjourn the suit. In the event of dismissal of the suit, it is open to the plaintiff to apply for restoration of the suit and the Court may set aside the order of dismissal and restore the suit. An order dismissing a suit for default of appearance of parties is not a "decree" under Sec. 2(2), and hence, is not appealable. An order of dismissal of a suit based on erroneous application of Rule 3 can be said to be a "case decided"

within the meaning of Sec. 115 of the Code. Hence, where the Court has acted with illegality or with material irregularity in the exercise of jurisdiction, a revision would like against such an order. (Para 5.7)

The provisions of the Code are applicable to govern the procedure in a Motor Accident Claim case as provided under Rule 229 of the Gujarat Motor Vehicles Rules, 1989. There is no separate procedural law, made applicable to conduct the Motor Accident Claim petitions. Therefore, application for restoration, made under Order 9, Rule 4, in the instant case, is absolute, legal and sustainable, and therefore, the revision, arisen out of such order, passed below such application, is also undoubtedly maintainable. (Para 5.11)

On perusal of the application and other relevant papers, it appears that the restoration application was

C/SCA/11530/2023 ORDER DATED: 11/07/2023

filed by the applicants on 22 nd November, 2001 and another restoration application is filed on 28 th January, 2004, under Order 9, Rule 4 of the Code, wherein, the applicants have described the reasons and tried to justify their case for restoration of the application. On perusal of the papers, it appears that the applicants are poor persons and coming from the lower strata of the society as they belong to Tribal community. Therefore, instead of entering into the technicalities and with a view to do the substantial justice, the Court below was required to adopt lenient view. (Para 6)."

5. The provisions of CPC are applicable in

governing procedure in a claim case as

provided under Rule 229 of the Gujarat Motor

Vehicle Rules. No separate procedural law is

made applicable to conduct MACP and therefore,

when an application for restoration is made

under Order 9, then it is legally sustainable

and while keeping the object of the act in

mind being a welfare legislation, the Court

has to consider such application liberally and

intention of the legislature enacting such

C/SCA/11530/2023 ORDER DATED: 11/07/2023

provision to achieve the said object has to be

considered. The Court should adopt the

approach in the manner which fulfills the

policy of the legislature and the

interpretation to be adopted should be more

favourable and beneficial to the person in

whose interest the act has been passed. In the

first instance, no claim petition should be

dismissed for default in absence of the

evidence from the side of the applicant. The

Claims Tribunal should follow the direction in

the case of Jai Prakash v. National Insurance

Company Limited, reported in (2010) 2 SCC 607

and when the claimants show their willingness

to produce the evidence on record and moves a

restoration application, the Tribunal is

required to allow the same.

6. In view of the observations made in

Bharatbhai's case and since MACP no.505/06

which was dismissed for default, renumbered as

MACP no.832/17 on 14.9.2018 is an order bad in

C/SCA/11530/2023 ORDER DATED: 11/07/2023

law and as the restoration application has

been moved, the learned Tribunal was required

to restore the claim petition as there was no

decision on merits. Thus, the order dated

19.1.2023 passed in MACMA no.132/21 is quashed

and set aside. MACP no.832/17 is ordered to be

restored on the file of the concerned Tribunal

and parties are directed to cooperate the

Court for producing the evidence and let the

Tribunal record the evidence and complete the

proceedings within a period of six months

after receipt of the writ of this Court.

7. Accordingly, the present petition stands

disposed of.

(GITA GOPI,J) Maulik