Meena Ram ....Non vs Vinay Nanda And Another ...
2023 Latest Caselaw 24 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CMP(M) No. 1376 and CMP No. 14634 of 2022 in FAO(WCA) No. : 279 of 2012

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                                                Reserved on           : 27.12.2022

                                                Decided on            : 02.01.2023





     Meena Ram                                  ....Non-applicant/appellant

                                        Versus





     Vinay Nanda and another                    ...Applicants/respondents

     Coram

The Hon'ble Mr. Justice Satyen Vaidya, Judge.

Whether approved for reporting? 1 Yes

For the non-applicant/appellant : Mr. V.S. Chauhan, Sr. Advocate, with Mr. Ajay Singh Kashyap, Advocate.

For applicant/respondent No.1 : Mr. P.D. Nanda, Advocate

For respondent No.2/non- :Mr. B.M. Chauhan, Sr. applicant Advocate, with Mr. Amit Himalvi, Advocate.

Satyen Vaidya, Judge

FAO(WCA) No. 279 of 2012 was filed

before this Court under Section 30 of Employees

Compensation Act by the claimant against

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

award dated 08.06.2012, passed by

Commissioner under the Act ibid in Case No.

9-2/2011 of 2008.

.

2. The employer Sh. Vinay Nanda was

impleaded as respondent No. 1 and insurer was

impleaded as respondent No.2.

    4.         The
               r          to

of 2012, vide judgment dated 08.10.2021.

employer Sh. Vinay

(applicant herein) approached this Court by filing Nanda

an application CMP No. 10231 of 2022 on

07.07.2022 with a prayer to recall the judgment

passed by this Court in FAO(WCA) No. 279 of

2012, on the ground that he had no notice of the

pendency of appeal before this Court as he was

never served with any notice and hence was not

able to put in appearance. Applicant, however

withdrew CMP No. 10231 of 2022 on 23.09.2022.

5. On 23.09.2012, applicant filed

another application CMP No. 14634 of 2022

under Order 9 Rule 13 of the Code of Civil

Procedure ( for short 'The Code') with a prayer to

set aside ex parte judgment dated 08.10.2021,

passed by this Court in FAO(WCA) No. 279 of

.

2012. Another application CMP(M) No. 1376 of

2022 was also filed by the applicant on the same

day i.e. 23.09.2022 under Section 5 of the

Limitation Act, with a prayer to condone the delay

in filing the application under Order 9 Rule 13

of the CPC. Both these applications are being

decided by this order.

6. Rule 21 of Order 41 of the Code,

provides for a remedy to a respondent, when the

appeal has been heard ex parte, to apply to the

Appellate Court to rehear the appeal on satisfying

the Court that either the notice was not duly

served upon him or he was prevented by

sufficient cause from appearing when the appeal

was called on for hearing. On being satisfied on

any of the above grounds, the Court is then

mandated to rehear the appeal. The applicant

instead of seeking aforesaid remedy, has

approached this Court under Order 9 Rule 13 of

the Code, which is not the proper remedy for him.

In order to avoid technicalities, the application

.

filed by the applicant is being treated hereafter

as being filed under Order 41 Rule 21 of the

Code.

7. Applicant has prayed for condonation

of delay on the ground that he was not aware

about the passing of judgment dated 08.10.2021

in FAO(WCA) No. 279 of 2012 till 03.03.2022,

when he received a notice from this Court in

Review Petition No. 127/2021, whereby the

review of aforesaid judgment has been sought by

the insurer.

8. The limitation, under Article 123 of

the Limitation Act, to file an application under

Order 41 Rule 21 of the Code is 30 days from the

date of decree and when the summons or notice

was not duly served, from the date of knowledge

of passing of such decree. Assuming that

applicant had no notice or knowledge of the

pendency of appeal or its decision, he was obliged

to apply to this Court for rehearing the appeal

within 30 days from the date of knowledge dated

.

03.03.2022. The application has been filed on

23.09.2022.

9. The only explanation for delay in

filing the application as rendered by the applicant

is that after attaining the knowledge about the

passing of judgment dated 08.10.2021, he had

applied for the copies of records of the case from

the Registry of this Court on 28.03.2022, which

were supplied to him on 25.06.2022. The reason,

so assigned, cannot be held to be a sufficient

cause for not preferring the application within

time. Firstly, the applicant having acquired

knowledge on 03.03.2022 had applied for the

copies of records at leisure on 28.03.2022 and

secondly, had waited till the supply of the copies

to him for knowing the details contained therein.

There is no explanation as to why sufficient

urgency was not shown by the applicant as he

had an easy option to inspect the records in

accordance with the applicable rules.

10. Though, the applicant has not pleaded

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so , but this Court takes notice of the fact that

the first application i.e. CMP No. 10231 of 2022

was filed by applicant on 07.07.2022 seeking

recalling of the judgment dated 08.10.2021.

Based on the reasons, as noticed above, even the

application filed on 07.07.2022 cannot be said to

be within limitation.

11. The reason of applying for copies of

the records and then waiting for its supply,

cannot be held to be cause much less sufficient

cause for delay in filing the application. Such

cause was generated by the applicant by his own

mistake. He cannot be allowed to take benefit

thereof.

12. It is also trite that the merits of the

plea for rehearing the appeal, in appropriate

cases may persuade the Court to grant the

prayer for condonation of delay. Notwithstanding

the fact that this Court has not found sufficient

cause in the plea of applicant for condonation of

delay, the merits of the plea for rehearing the

.

appeal are being examined hereafter, only for

aforesaid purpose.

13. Out of the two grounds mentioned in

Order 41 Rule 21 of the Code, applicant has

placed reliance on the ground that he was never

served in FAO(WCA) No. 279 of 2012. It is averred

in the application i.e. CMP No. 14634 of 2022

that the notice in the appeal was served upon

one Smt. Reena Nanda, who was not related to

the applicant. The plea, so raised by the

applicant, has been found to be contrary to the

records. A notice was issued to the applicant in

FAO(WCA) No. 279 of 2012 in pursuance to order

dated 17.07.2012, passed by the Court. Record

reveals that the notice was issued to the

applicant on the address as mentioned in the

memorandum of parties available with the

grounds of appeal. The date of appearance

mentioned in the notice was 24.09.2012. There is

an endorsement on the right top margin of the

copy of notice that the same was issued through

.

registered post with acknowledgement due. The

acknowledgment was received by the Registry of

this Court duly signed by the applicant. After

waiting for representation on behalf of the

14.

r to applicant, it was recorded by the Registry that

the applicant stood served.

It is not the case of the applicant that

the acknowledgement remitted by the

Department of Posts to the Court did not bear

his signature. It is also not his case that the

address on the notice was not his correct

address.

15. The plea regarding receipt of notice

by one Ms. Reena Nanda cannot improve the

case of applicant for the reason that the notice

bearing report of Process Serving Agency to the

effect that the notice was received by Ms. Reena

Nanda, Sister-in-law of applicant, was issued

during the pendency of the appeal to notify the

fact that the matter was proposed to be listed

before Lok Adalat on 29.03.2014. As noticed

.

above, the applicant had been duly served with

a notice of hearing of appeal for 24.09.2012 and

despite service he had failed to put in

appearance. His absence from the proceedings

of appeal continued thereafter, and finally ,the

judgment dated 01.10.2021 was passed

absence of applicant.

in

16. Applicant has also raised a plea that

the presence of learned counsel for the parties

were intermingled or wrongly recorded on few

dates during the proceedings of appeal. This

discrepancy had kept in only after 06.11.2018.

Applicant cannot take any benefit of such

discrepancy as he has not shown any prejudice

having been caused to him as a result thereof.

The fact remains that despite having been

served with a notice for appearance on

24.09.2012, applicant had chosen not to

appear.

17. Thus, applicant has failed to satisfy

.

the Court on his plea that the notice was not

duly served upon him. Accordingly, the applicant

cannot succeed in his plea under Order 41 Rule

21 of the Code for rehearing of the appeal. Both

the applications

accordingly, dismissed.

                 r         to
                         deserve     dismissal      and      are

                                       (Satyen Vaidya)
    2nd January, 2023                       Judge
          (sushma)