Himachal Pradesh High Court

Lata Devi & Ors vs Chet Ram & Ors on 17 July, 2024

Author: Jyotsna Rewal Dua

Bench: Jyotsna Rewal Dua

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMPMO No.300 of 2024 Decided on: 17th July, 2024 _________________________________________________________________

    Lata Devi & Ors.                                                          ....Petitioners





                                         Versus
    Chet Ram & Ors.                                                         ...Respondents

_________________________________________________________________

Coram Ms. Justice Jyotsna Rewal Dua l Whether approved for reporting? Yes

____________________________________________________________

For the petitioners: Mr. Dhananjay Singh and Mr. B.S. Bhandari, Advocates.

For the respondents: Mr. Ajay Kumar Sharma, Advocate.

Jyotsna Rewal Dua, Judge

The claimants are aggrieved against the order

dated 16.05.2024, passed by the learned Motor Accident

Claims Tribunal-II, Shimla, H.P. (Claims Tribunal in short),

allowing the respondents to join the motor accident claim

proceedings after setting aside ex-parte order dated

05.07.2022.

l Whether reporters of Local Papers may be allowed to see the judgment? yes

2. The respondents-the owner and driver of the

offending vehicle were proceeded against ex-parte by the

learned Claims Tribunal vide order dated 05.07.2022. The

respondents moved an application under Order 9 Rule 7 of

Code of Civil Procedure (CPC in short) read with Section 5 of

Limitation Act for setting aside the ex-parte order dated

05.07.2022, after condoning the delay in moving the

application.

2(i). The application was moved with the averments

that: -

(a) The respondents had engaged an Advocate (named

in the application) to defend their case. He had drafted the

reply to be filed on their behalf to the claim petition. The

respondents were informed by their Advocate that their

presence would not be required before the learned Claims

Tribunal until stage of recording of the evidence and that he

would inform them about requirement of their presence if

any, in the Court.

(b) The respondents remained under the bonafide

belief that their lawyer was pursuing the case.

(c) In March 2023, the respondents came to Shimla

and inquired about the status of the case from their learned

counsel. On his dilly-dallying the matter, the applicants

inquired about the status of the case themselves and came

to know that they had been proceeded ex-parte on

.

05.07.2022. The respondents took no objection from their

counsel on 29.03.2023, engaged another counsel and that is

how the application was moved by them under Order 9 Rule

7 CPC for setting aside ex-parte order with the prayer for

condoning the delay in moving the application.

    2(ii)             The
                       r        petitioners           (claimants)          opposed           the

application primarily on the ground that the events had

overtaken themselves in the interregnum. The claim petition

had been reserved for judgment. Hence, in view of law laid

down in Surinder Kaur Vs. Jagtender 1, the application

moved under Order 9 Rule 7 CPC was not maintainable.

Learned Claims Tribunal after considering the

rival contentions of the parties, allowed the application vide

order dated 16.05.2024, which has been impugned by the

claimants in the instant petition.

3. Heard learned counsel on both sides and

considered the case file.

4. The only contention urged for the petitioners is

CMPMO No.263 of 2022, decided on 20.01.2024

that the respondents' application under Order 9 Rule 7 CPC

for setting aside ex-parte order dated 05.07.2022 was not

maintainable as the ex-parte arguments in the claim petition

had been concluded and the matter had been reserved for

pronouncement of the award. Once the case had been heard

and fixed for pronouncement of judgment, the application for

setting aside ex-parte order could not be maintained.

In my considered view, the above contention is

misconceived in the facts of the case. This is for the following

reasons: -

4(i) It is a fact that respondents were proceeded ex-

parte on 05.07.2022.

4(ii) It is also a fact that the matter was fixed for

arguments on 19.01.2023. Zimni order passed on the said

date makes it evident that written arguments on behalf of the

petitioners were placed in file. The matter was ordered to be

put up for further consideration on 09.03.2023. In terms of

the order passed on 09.03.2023, the case was directed to be

put up for judgment/order on 20.03.2023. The order was not

ready on 20.03.2023, accordingly, the matter was ordered to

be put up on 11.04.2023 for the same purpose. It is at that

stage the respondents moved an application for setting aside

the ex-parte proceedings.

4(iii) Learned Claims Tribunal in the impugned order

dated 16.05.2024 has made factual observations that the

.

arguments in the motor accident claim case were heard by

the then Presiding Officer of the leaned Claims Tribunal; That

the present incumbent holding the post of learned Motor

Accident Claims Tribunal, has to hear the arguments afresh;

That in view of these circumstances, the judgment rendered

in Surinder Kaur's case (supra) was distinguishable from the

fact situation of the present case.

4(iv) Undoubtedly, there being a new Presiding Officer

manning the post of learned Motor Accident Claims Tribunal,

the arguments in the case are required to be advanced afresh

before the leaned Claims Tribunal. The scenario therefore,

was akin to a situation where arguments were yet to be

addressed. Because of this peculiarity, instant was not a

case which had reached the stage of pronouncement of order.

The hearing was yet to take place. The stage of the instant

case at the time of institution of application under Order 9

Rule 7 CPC differed from the stage in Surinder Kaur's case

(supra). In latter case, arguments had been concluded,

whereas in the instant case, because of change of the

Presiding Officer, fresh arguments were to be advanced. In

this context, reference can be safely made to Harsh Mahajan

Vs. Syndicate Bank.2 In the said case, application moved

.

for setting aside ex-parte proceedings was contested by the

plaintiff on the ground that after recording the evidence and

hearing the arguments, only judgment remained to be

pronounced, therefore, the application was liable to be

dismissed. The contention raised on behalf of the defendant

was that after the case had been transferred, hearing had to

be undertaken afresh by the transferee Court. Therefore, the

defendant cannot be precluded from appearing before the

transferee Court and to argue the matter on the basis of

material, which was there on the record. The Court held that

the case had to be registered afresh by the transferee Court

and from that stage, it had to proceed for disposal in

accordance with law. Relevant observations from the

judgment are as under:-

"6. On behalf of the defendant, it has been submitted by Shri Gupta that in case the Senior Sub-Judge had pronounced the judgment, after hearing was concluded by him, then his client may not have been able to persist with the application on the basis of a decision reported in AIR 1964 SC 993, Arjun Singh v. Mohindra Kumar,

1997(1) Sim. L.C. 14

which has been followed by the trial Court while dismissing the application in question. According to the learned Counsel for the defendant, after the case had been transferred, the hearing remained to be

.

undertaken by the transferee court which was to

pronounce the judgment after hearing the counsel for the plaintiff and his client could not be precluded from appearing before the said court and to argue the matter

on the basis of the material which was there on the record. So, on this basis, the learned Counsel for the defendant further pointed out that the hearing of the

case had not been completed within the meaning of Order 9, Rule 7, C. P. C. and thus the ratio of the decision supra does not govern the case of his client and on such basis, he has argued that the trial Judge

has failed to exercise the jurisdiction vested in it and the

jurisdiction which has been exercised is not only illegal but is also per- verse and the impugned order deserves to be set aside and the application filed by his client

deserves to be allowed.

7. On the other hand, learned Counsel for the plaintiff has forcefully argued that so far the hearing of the case is

concerned, it stands already concluded and the case in

hand is wholly covered by the ratio of the judgment supra. According to the learned Counsel for the plaintiff, after the transfer of the case to the court of Sub-Judge,

Ist Class (I), Shimla, for the purposes of Order 9, Rule 7, C. P. C. the hearing remained concluded and thus, the dismissal of the application by the trial Court is perfectly legal and calls for no interference.

8. I have given my best consideration to the submissions made on behalf of the learned Counsel for the parties and I am of the view that the present revision petition deserves to be allowed. It may be appropriate to point

out here that the case was admitted not decided on 15.12.1994 by the Senior Sub-Judge, who after proceeding ex parte against the defendant, recorded the evidence and concluded the hearing and thereafter

.

reserved the judgment on 15-12-1994. But before

pronouncement of the judgment, application for setting aside the ex parte order was filed on 7-12-1994 itself and when this application was pending before the

Senior Sub-Judge, the case was admittedly transferred to another court i. e Sub-Judge, Ist Class (I), Shimla. In this context, it may be appropriate to mention here that

the case has to be registered afresh by the transferee court and from that stage, it has to be proceeded for disposal in accordance with law. As such the trial Court was not justified in holding that because the case was

listed for judgment, therefore, no hearing was to be

undertaken by it. This position would have been correct if the case was pending before the Senior Sub-Judge. But as explained hereinabove, the case was transferred

to the court of Sub-Judge, Ist Class (I), Shimla before whom the proceedings were commenced and he had to dispose of in accordance with law after hearing the

counsel for the plaintiff. In this view of the matter, the

ratio of the judgment of the ape x Court supra is not applicable to the facts of the case in hand."

4(v). The fact position in the instant case is nearer to

the facts in Harsh Mahajan's case (supra). Learned Claims

Tribunal had a new Presiding Officer, who had to hear the

arguments afresh, therefore, the respondents cannot be

precluded from joining the proceedings. The application

moved by them for setting aside ex-parte order dated

05.07.2022 was maintainable. The learned Claims Tribunal

justifiably entertained and allowed the application moved

under Order 9 Rule 7 CPC, thereby setting aside the ex-parte

order dated 05.07.2022.

No other point was urged.

5. For the aforesaid reasons, there is no merit in the