Gujarat High Court
Patel Jayantibhai Veljibhai vs Patel Kanjibhai Virchandbhai on 1 September, 2023
Bench: Gita Gopi
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C/SCA/14605/2023 ORDER DATED: 01/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14605 of 2023
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PATEL JAYANTIBHAI VELJIBHAI
Versus
PATEL KANJIBHAI VIRCHANDBHAI
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Appearance:
NISHIT A BHALODI(9597) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2,3,4,5
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 01/09/2023
ORAL ORDER
[1] Advocate Mr. Bhalodi for the applicant
submitted that MACP no.1726/2012 came to be
dismissed for default on 10.7.2018 by MACT
(Aux), Mehsana at Visnagar observing non-
appearance of the applicant since 16.12.2015
and thereafter, on 9.1.2018 and 1.5.2018
matter stand adjourned. Mr. Bhalodi submitted
that Restoration Application being Misc. MACA
no.72/2021 was moved which was also not
entertained observing the negligent and
lethargic approach on the part of the
applicant as well as the advocate on record
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drawing an adverse inference that the
applicant is not interested either to serve
the process to the opponents or to proceed
ahead with the matter on merits and the
Restoration Application stood dismissed for
default of applicant for want of service of
process to the opponents as well as for the
want of prosecution.
[2] Mr. Bhalodi referring to the judgment in the
case of Bharatbhai Narsinghbhai Chaudhary &
Ors. v. Malek Rafik Malek Himmatbhai, reported
in 2011 (2) GLR 1324, submits that no claim
petition can be dismissed for default and the
claim petition has to be decided on merits and
even if when the Restoration Application is
moved, the Tribunal is required to restore the
same and decide on merits since the
application for restoration itself would prove
that the claimant is interested in proceeding
with the matter on merits.
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[3] It is necessary to reproduce relevant part of
the decision in the case of Bharatbhai
Narsinghbhai Chaudhary (supra), which reads 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
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
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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
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
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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)."
[4] In view of the proposition of law laid down in
the above judgment, the order dated 2.8.2022
passed by MACT (Aux), Mehsana at Visnagar
passed in Misc. MACA no.72/2021 as well as the
order dated 10.7.2018 passed by the MACT
(Aux), Mehsana at Visnagar in MACP
no.1726/2012 are quashed and set aside. The
main matter is ordered to be restored on the
file of the concerned Tribunal with a
direction that the matter be disposed of
within a period of six months after affording
an opportunity to adduce the evidence to all
the parties on record. All the parties to
cooperate with the Tribunal in concluding the
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matter within the stipulated time prescribed
by this Court. Further, the issue of grant of
interest for the delayed period is kept open
for all the parties to agitate during the
course of arguments.
[5] Accordingly, the present petition stands
disposed of.
(GITA GOPI,J)
Maulik
