[Cites 5, Cited by 0]
Madhya Pradesh High Court
Harswaroop vs Prembai on 8 December, 2025
Author: Hirdesh
Bench: Hirdesh
NEUTRAL CITATION NO. 2025:MPHC-GWL:31866
1 MA-1635-2021
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 8 th OF DECEMBER, 2025
MISC. APPEAL No. 1635 of 2021
HARSWAROOP
Versus
PREMBAI AND OTHERS
Appearance:
Shri Rishikesh Bohare - learned Counsel for appellant.
Shri Anand Kumar Gupta- learned Counsel for respondents No. 1 to
3.
ORDER
This miscellaneous appeal under Order 43 Rule 1(d) of the CPC has
been filed by the appellant assailing the order dated 17-03-2021 passed by
the Additional District Judge, Chachoda, District Guna (hereinafter referred
to as "the Claims Tribunal") in MJC No.07/2019, whereby the application
filed by the appellant under Order 9 Rule 13 read with Section 151 CPC
along with an application under Section 5 of the Limitation Act, seeking
setting aside of the Award dated 14-10-2015 passed in connection with
Claim Case No.19/2010 (Execution), has been rejected.
2. Facts of the case in brief are that respondents No. 1 to 3-claimants
had filed a claim petition under Section 166 of the Motor Vehicles Act
before the Motor Accident Claims Tribunal, Chachoda, District Guna (M.P.),
on account of the death of late Shri Bhanwarlal Jatav. It was alleged that on
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13-03-2010 at about 09:00 a.m., the deceased was walking towards Village
Moikhejrha. When he reached A.B. Road near Village Charanpura,
respondent No. 4/non-applicant No.1, while driving a Hero Honda
motorcycle in a rash and negligent manner, hit him, causing multiple injuries
that resulted in his death during medical treatment. In the said claim case, the
appellant/non-applicant No. 2 and respondent No. 4/non-applicant No. 1
were proceeded ex parte, and an ex parte Award dated 14-10-2015 was
passed against them, awarding compensation of Rs.5,24,000/- with interest
@ 6% per annum in favour of the claimants. For setting aside the ex parte
Award, the appellant filed an application under Order 9 Rule 13 read with
Section 151 CPC along with an application under Section 5 of the Limitation
Act, which came to be dismissed vide impugned order. Hence, this appeal.
3. It is contended on behalf of the appellant that the appellant came to
know of the Award only in September 2018 when a Court staff member
approached him for service of notice in the execution proceedings. He
thereafter applied for a certified copy of the Award, which he received on
19-09-2018, and after collecting relevant documents, he filed his application
under Order 9 Rule 13 read with Section 151 CPC on 14-10-2018. The
appellant was never served with any notice and had never engaged Shri R.K.
Agrawal, Advocate. It is further submitted that if any memo of appearance
containing forged signatures was filed, the Tribunal was duty-bound to
conduct an inquiry, which it failed to do. It is argued that the impugned order
is non-speaking, mechanical, and passed without application of mind. It is
further contended that the respondents failed to prove that the appellant was
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the owner of the offending vehicle. The Tribunal also failed to appreciate
that the application under Order 9 Rule 13 was filed within limitation from
the date of knowledge and sufficient cause for delay had been shown. It is
further contended that in view of catena of judgments of the Supreme Court,
a liberal approach may be adopted. Hence, the impugned order deserves to
be set aside.
4. On the other hand, learned counsel for respondents No.1 to 3
opposed the submissions of the appellant, supported the impugned order, and
prayed for dismissal of the appeal.
5. Heard learned counsel for the parties and perused the record and
impugned order.
6. Sections 101 of the Indian Evidence Act provide that the burden of
proof lies upon the person who asserts the existence of a fact. Section 102
stipulates that the burden of proof in a suit lies upon the party who would fail
if no evidence were given on either side.
7. On a bare perusal of the aforesaid provisions, it is evident that the
burden of proving the assertions made in support of the application under
Order 9 Rule 13 CPC squarely lies upon the appellant. Unless he discharges
this burden by producing cogent and reliable evidence, he cannot succeed. In
the present case, the appellant has failed to establish that the signature
appearing on the Vakalatnama or other documents on record was forged.
Therefore, it is clear that the appellant has been unable to substantiate his
plea regarding non-service of notice or lack of knowledge of the
proceedings.
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8. After considering the rival submissions and examining the entire
record of the original claim proceedings, this Court finds no infirmity in the
findings recorded by the learned Claims Tribunal. The Claims Tribunal has
rightly noted that a duly executed Vaklatnama through counsel Shri R.K.
Agrawal bearing the appellant's signature was filed on 06-08-2010 and an
application under Order 7 Rule 11 read with Section 151 CPC was filed on
his behalf on 25-02-2011 and he remained represented through counsel until
14-03-2012. Thus, the appellant's denial regarding engagement of counsel
stands falsified by clear documentary evidence.
9. Further, the Claims Tribunal has observed, and rightly so, that the
signatures on the Vakalatnama and the appellant's own application under
Section 5 of the Limitation Act are identical, demonstrating his knowledge
and participation in the proceedings. Consequently, the explanation furnished
for the inordinate delay of nearly three years in filing the application under
Order 9 Rule 13 CPC has been correctly held to be false and insufficient.
10. The law is well-settled that a party seeking to set aside an ex parte
decree must approach the Court with clean hands and satisfactorily explain
each day's delay. Delay cannot be condoned on mere equitable grounds
when the explanation furnished is demonstrably false. In the present case, the
appellant must establish "sufficient cause" both for non-appearance on the
date of hearing and for condonation of delay. The appellant has failed to
establish either.
11.The scope of interference in an appeal under Order 43 Rule 1(d)
CPC is limited. An appellate Court will interfere only where the order suffers
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from patent illegality or perversity. No such error is found in the impugned
order passed by the Claims Tribunal.
12. In view of the above discussion and in the absence of any ground
warranting interference, this Court finds the impugned order to be well-
reasoned and based on proper appreciation of facts and law. Accordingly, the
miscellaneous appeal stands dismissed. No order as to costs.
(HIRDESH)
JUDGE
MKB
