Gujarat High Court
Maganbhai Rangjibhai Makvana vs Zavarsing Kamjibhai Tadvi on 25 January, 2024
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
C/SCA/20483/2023 ORDER DATED: 25/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 20483 of 2023
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MAGANBHAI RANGJIBHAI MAKVANA
Versus
ZAVARSING KAMJIBHAI TADVI
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Appearance:
NISHIT A BHALODI(9597) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 25/01/2024
ORAL ORDER
1. Heard learned Advocate for the petitioner Mr. Nishit
A. Bhalodi, who submits that the original Motor
Accident Claims Petition was registered as M.A.C.P.
No.2128 of 1993, which was re-numbered as
M.A.C.P. No.6353 of 2004 and again re-numbered as
M.A.C.P. No.575 of 2017 came to be dismissed on
22.10.2018 by the learned Motor Accident Claims
Tribunal (Aux.), Dahod at Limkheda stating that the
matter had been kept from time to time for evidence,
the learned Advocate had failed to produce the
evidence nor had the matter proceeded for a long
time. The statement of oath of the applicant was
not produced and the stage of the parties was closed,
and thus for want of prosecution, the petition came
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C/SCA/20483/2023 ORDER DATED: 25/01/2024
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to be dismissed. It is further submitted that an
application for restoration under Order 9 Rule 9 of
the Civil Procedure Code, 1908 was moved, which
came to be dismissed.
2. Relying on the decision of this Court in the case of
Bharatbhai Narsinghbhai Chaudhary and Others v.
Malek Rafik Malek Himantbhai Malek and Others
reported in 2011 (2) G.L.R. 1324, learned Advocate
Mr. Nishit A. Bhalodi submitted that the petitioner
was required to be heard on merits and if any
restoration application was moved, then the same was
required to be admitted. Further, attention was
also drawn to the fact that the matter was of the
year 1993 and had continued before various learned
Tribunals. Notice was required to be issued to
parties for a fair trial and to follow the principle of
natural justice.
3. The relevant part of the decision in the case of
Bharatbhai Narsinghbhai Chaudhary (supra) is
reproduced herein below 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
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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 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
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C/SCA/20483/2023 ORDER DATED: 25/01/2024
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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 22nd November,
2001 and another restoration application is filed on
28th 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 apperas 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 the above case of Bharatbhai Narsinghbhai
Chaudhary and Others (supra), it has been held that
the learned Tribunal has no power to dismiss the
Claim Petition for default taking into consideration
the object behind the Motor Vehicles Act, 1988, i.e.
to provide adequate compensation to the claimants.
Further, the Court had laid down the proposition of
law that the M.A.C.P.'s should not be dismissed
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without deciding on merits and even if a Restoration
Application is moved, then the same is to be allowed.
5. As the Claim Petition has not been decided on merits,
the present petition is allowed and the judgment and
award/s / orders dated 22.10.2018 passed by the
learned Motor Accident Claims Tribunal (Auxi.),
Dahod at Limkheda in M.A.C.P. (New) No.575 of
2017, M.A.C.P. (Old) No.6343 of 2004 and Original
M.A.C.P. No.2127 of 1993 is quashed and set aside.
The delay is condoned. The M.A.C.P. (New) No.575
of 2017, M.A.C.P. (Old) No.6343 of 2004 and
Original M.A.C.P. No.2127 of 1993 is ordered to be
restored on the File of the learned Tribunal, to be
decided on merits. An opportunity be granted to all
the parties to provide the evidence on record. All the
parties are directed to co-operate with the learned
Tribunal and to conclude the petition within a period
of one year from the date of receipt of writ of the
order of this Court. Record and proceedings, if any,
be sent back to the concerned Court / Tribunal
forthwith.
Sd/-
(GITA GOPI, J)
CAROLINE
