Orissa High Court
Goutam Agarwal vs Chyti Mahato (Dead) on 24 June, 2024
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.17216 of 2017
Goutam Agarwal ...... Petitioner
-Versus-
Chyti Mahato (Dead)
Maheswar Mahato & others ..... Opposite Parties
For Petitioner : Mr S. Udgata,
Advocate
For Opp. Party Nos. 1(a) : Mr. P.K. Nayak,
to 1(c) Advocate
For Opposite Party No.2 : None
CORAM: JUSTICE SANJAY KUMAR MISHRA
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Date of Hearing: 18.04.2024 Date of Judgment: 24.06.2024
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S.K. Mishra, J. This Writ Petition has been preferred
challenging the Order dated 28.11.2016 passed by the
2nd Additional District & Sessions Judge-cum-5th
M.A.C.T., Rourkela, in C.M.A. No.02 of 2015, arising out
of M.A.C. Case No.305 of 2013, vide which the petition
filed by the Opposite Party No.2 under Order 9 Rule 13 of
C.P.C. was allowed and the ex-parte judgment and award
dated 16.05.2015 passed in M.A.C. Case No.305 of 2013
was set aside.
2. The factual matrix of the case, as pleaded in
the Writ Petition, is that the Opposite Party No.1
(Claimant before the Claims Tribunal) filed M.A.C. Case
No.305 of 2013 before the Additional District Judge-cum-
3rd M.A.C.T., Rourkela, claiming compensation for death
of her husband in the hospital on 18.02.2013 due to
vehicular accident caused by one Bolero bearing
Registration No.OR-14R-0166 on 19.01.2013, arraying
the present Opposite Party No.2 as the owner of the
offending vehicle as the sole Opposite Party.
3. However, the Opposite Party No.2 did not
appear in the said case despite service of notice on him.
Ultimately, the Claims Tribunal, by judgment and order
dated 16.05.2015, directed the Opposite Party No.2 to
pay an amount of 1,75,000/- with interest @ 6% per
annum from the date of application till the payment is
made and it was ordered to make the payment within a
W.P.(C) No.17216 of 2017 Page 2 of 20
period of two months from the date of the said order.
Thereafter, the Opposite Party No.2 filed an application
under Order 9 Rule 13 of C.P.C., which was registered as
C.M.A. No.02 of 2015, praying therein to set aside the
judgment and order dated 16.05.2015 passed in M.A.C.
Case No.305 of 2013 on the ground that he is not the
owner of the offending vehicle and the impugned order
has been passed against a wrong person. On being so
moved, the Claims Tribunal, by order dated 28.11.2016
in C.M.A. No.02 of 2015, had been pleased to set aside
the judgment and award dated 16.05.2015 passed in
M.A.C. Case No.305 of 2013. Thereafter, the Claims
Tribunal, by order dated 20.03.2017, ordered for
substituting the Petitioner in place of the Opposite Party
No.2 as the sole Opposite Party, followed by order dated
12.04.2017, vide which it was ordered to issue notice to
the Petitioner. On receiving notice to Show Cause in
M.A.C. Case No.305 of 2013 from the Claims Tribunal,
the Petitioner (sole Opposite Party before the Claims
Tribunal) has preferred the present Writ Petition
W.P.(C) No.17216 of 2017 Page 3 of 20
challenging the order dated 28.11.2016 passed in C.M.A.
No.02 of 2015, arising out of M.A.C. Case No.305 of
2013, with a prayer to quash the said order and further
proceeding in M.A.C. No.305 of 2013, now pending in the
Court of 2nd Additional District Judge-cum-5th M.A.C.T.,
Rourkela.
4. The said order passed in C.M.A. No.02 of 2015
has been challenged on the ground that the Claims
Tribunal failed to appreciate that it became functus
officio after delivery of judgment and order dated
16.05.2015 in M.A.C. Case No.305 of 2013 and the
Tribunal committed grave illegality with material
irregularity in allowing the said application and setting
aside the judgment and decree on the grounds other than
those mentioned in Order 9 Rule 13 of C.P.C.
5. It is worthwhile to mention here that being
noticed, the Opposite Party No.1, who is the claimant
before the Claims Tribunal, appeared through her
Counsel. However, as the Opposite Party No.1 died
W.P.(C) No.17216 of 2017 Page 4 of 20
during pendency of the Writ Petition, on being
substituted and noticed, the legal heirs of Opposite Party
No.1 (Claimant before the Court below) have appeared
through their Counsel. However, the Opposite Party No.2,
who was the original Opposite Party in M.A.C. Case
No.305 of 2013, despite valid service of notice, did not
appear in the present case.
6. Mr. Udgata, learned Counsel for the Petitioner,
drawing attention of this Court to the provisions under
Order 9, Rule 13 of C.P.C., submitted that the scope
under the said provision is limited for setting aside the ex
parte decree against the Defendant. Under the said
provision, the Defendant can apply to the Court, by
which the decree was passed, for an order to set it aside;
if he satisfies the Court that the summon was not duly
served, or that he was prevented by sufficient cause from
appearing when the suit was called on for hearing. Only
then the Court shall make an order setting aside the
decree as against the Defendant upon such terms as to
costs, payment into Court or otherwise as it thinks fit.
W.P.(C) No.17216 of 2017 Page 5 of 20
Apart from these two grounds, no other ground can be
agitated under the said provision for setting aside an ex
parte decree
7. Mr. Udgata further submitted that though the
Claims Tribunal, vide impugned order dated 28.11.2016
passed in C.M.A. No.02 of 2015, observed that the plea of
the Petitioner to set aside the said ex parte judgment
passed in M.A.C. Case No.305 of 2013 is not coming
under any of the two grounds prescribed under Order 9
Rule 13 of C.P.C., but allegedly exercising its inherent
jurisdiction under Section 151 C.P.C. and on the plea of
doing complete justice between the parties, irrespective of
procedural bottle neck, ordered to set aside the judgment
and award dated 16.05.2015 passed in C.M.A. No.305 of
2013, subject to payment of cost of Rs.3,000/- payable to
the present Opposite Party No.1.
8. To buttress his submission, learned Counsel
for the Petitioner relied on the judgments reported in AIR
2001 S.C. 43 (Hari Singh Mann Vs. Harbhajan Singh
W.P.(C) No.17216 of 2017 Page 6 of 20
Bajwa), AIR 2005 SC 242 (National Institute of Mental
Health & Neuro Sciences Vs. C. Parameshwara), AIR
2008 SC 1190 (State of U.P. Vs. V. Roshan Singh (D) by
Lrs. & others),2011 (I) OLR (SC) 923 (Parimal Vs. Veena
@ Bharti) and 2007 (Supp.I) OLR 1037 (Lokanath Sahoo
Vs. Thuri Bewa)
9. Per contra, Mr. Nayak, learned Counsel for the
substituted legal heirs of the deceased-Opposite Party
No.1, drawing attention of this Court to the impugned
order dated 28.11.2016 passed in C.M.A. No.02 of 2015,
submitted that there is no illegality or infirmity in the
impugned order passed by the Claims Tribunal in C.M.A.
No.02 of 2015, vide which the ex parte judgment dated
16.0.5.2015 passed by the said Court in M.A.C. Case
No.305 of 2013 was set aside and subsequently, the
present Petitioner, being the real owner of the offending
vehicle, was substituted in place of the present Opposite
Party No.2, who is the brother of the present Petitioner.
W.P.(C) No.17216 of 2017 Page 7 of 20
10. Mr. Nayak further submitted that though the
Petitioner is the own brother of the Opposite Party No.2,
intentionally the same has not been disclosed in the Writ
Petition. The Claims Tribunal, after recording evidence in
C.M.A. No.02 of 2015, has rightly passed the impugned
order dated 28.11.2016 thereby setting aside the ex parte
judgment dated 16.05.2015 passed in M.A.C. Case
No.305 of 2013. Mr. Nayak submitted that the Writ
Petition is a collusive one to harass and humiliate so also
debar the claimant to get the compensation, as the
offending vehicle had no valid insurance when the
accident occurred. Mr. Nayak further submitted there
being no infirmity in the impugned order passed in
C.M.A. No.02 of 2015, arising out of M.A.C. Case No.305
of 2013, the Writ Petition deserves to be dismissed. Mr.
Nayak submitted that since at the instance of the present
Petitioner further proceeding in M.A.C. Case No.305 of
2013 has been stayed since 01.09.2017, necessary
direction be given to the Claims Tribunal to dispose of the
M.A.C. Case No.305 of 2013 in a time bound manner.
W.P.(C) No.17216 of 2017 Page 8 of 20
11. Mr. Nayak, learned Counsel for the legal heirs
of the deceased-Opposite Party No.1, submitted that even
if the Claims Tribunal came to a conclusion that the
prayer made in the C.M.A. No.02 of 2015 for setting aside
the ex parte judgment dated 16.05.2015 passed in M.A.C.
Case No.305 of 2013 does not fall under the provision
under Order 9 Rule 13 of C.P.C., but has rightly
exercised its inherent jurisdiction under Section 151 of
C.P.C. for imparting complete justice between the parties
after taking into consideration the evidence laid in C.M.A.
No.02 of 2015.
12. Since a stand has been taken in the Writ
Petition as to non-applicability of Order 9 Rule 13 C.P.C.
so also in view of the observation made by the Claims
Tribunal vide the impugned order that the said provision
is not applicable for setting aside the ex parte award and
the Opposite Party No.2, who is the brother of the
Petitioner, avoided to appear in the present case, this
Court ordered to call for the L.C.R. From the order sheet
in M.A.C. Case No.305 of 2013, it is ascertained that the
W.P.(C) No.17216 of 2017 Page 9 of 20
claim application was presented before the Court of 1st
Additional District Judge-cum-3rd M.A.C.T., Rourkela, on
17.12.2013. The Claim Application was admitted on
03.01.2014 and it was ordered for issuance of notice to
the sole Opposite Party. Thereafter, the matter got
adjourned from time to time awaiting service return from
the Opposite Party. When the matter stood thus, vide
order dated 08.09.2014, the case record was ordered to
be transferred to the Court of 2nd Additional District
Judge-cum-5th M.A.C.T., Rourkela, which received the
record on 16.09.2014. Thereafter the matter got
adjourned to 25.09.2014 and then to 23.10.2014.
13. It is further evident from para-7 of the affidavit
evidence filed by the present Opposite Party No.2 as
P.W.1 in C.M.A. No.02 of 2015 that after receiving copy of
the judgment/order in M.A.C. No.305 of 2013, he could
know about the filing of M.A.C. No.305 of 2013 so also
judgment and order passed in the said case and prior to
that, he had no occasion to know about the
filing/pendency of M.A.C. No.305 of 2013, as no summon
W.P.(C) No.17216 of 2017 Page 10 of 20
has been received by him. Through him the certified copy
of the Registration Certificate in respect of the offending
vehicle bearing No.OR-14R-0166 was marked as Ext.1
without any objection. The Claims Tribunal passed the
impugned order with an observation that the plea of the
present Opposite Party No.2 (Petitioner in C.M.A. No.02 of
2015) is not coming under any of the two grounds
prescribed under Order 9 Rule 13 of C.P.C. However,
exercising its inherent power under Section 151 of C.P.C.,
the Claims Tribunal ordered for setting aside the ex parte
judgment and award dated 16.05.2015 passed against
the present Opposite Party No.2, who was the then sole
Opposite Party, as the offending vehicle was not insured.
14. In view of the submissions made by the learned
Counsel for the parties and the facts on record as
detailed above, it would be apt to reproduce below the
relevant paragraphs from the impugned order dated
28.11.2016 passed in C.M.A. No.02 of 2015.
"For proper appreciation of submission of learned
counsels, I perused the pleading in MAC 30513. In
that case a specific plea was taken by the
W.P.(C) No.17216 of 2017 Page 11 of 20
Claimant/OP that the accident has occurred due to
rash and negligent driving of a Bolero vehicle
bearing Regd. N. OR-14-R-0166 and the present
petitioner is the registered owner of the said
vehicle. In that case, notice was properly served on
the present petitioner but he did not turn up to
contest the case and after taking evidence, an
exparte order was passed by this tribunal in shape
of judgment dated 16.5.15, directing the present
petitioner who was OP in that case to pay
compensation of Rs.1.75,000/-, on the finding
that he is the registered owner of the offending
vehicle. In that case, the RC book of the
offending vehicle was never produced. Basing
upon the police paper in GR case 157/13 of
the Court of SDJM, Panposh such a finding
has been given by this tribunal that the
present petitioner who is the OP in that case
is the owner of the offending vehicle and as
such he is liable to pay compensation. So the
compensation/liability has been imposed upon
the present petitioner on the
allegation/finding that he is the registered
owner of the offending vehicle. But in the
evidence of PW1 as well as through Ext.1, it is
now very certain that he was/is not the owner
of the offending vehicle. According to the MAC
case filed before this tribunal, the accident
occurred on 19.1.13 at about 7.30 PM.
According the Ext.1 the Scorpio MDI vehicle
bearing No.OR-14-R-0166 has been transferred
in favour of Goutam Agarwal, son of Pawan
Kumar Agarwal, of Sector-B, Main Road,
Bandamunda, with effect from 10.3.11. So as
on the date of accident the present petitioner
was not the owner of the vehicle.
Order IX Rule 13 of the CPC provides that the
exparte judgment/order can only be set aside if a
party satisfied the Court/Tribunal that summons
has not been served on him properly or that he has
been prevented by some reason which was beyond
under his control to attend the Court/Tribunal. In
fact the plea and the case of petitioner is not
coming under any of the two grounds enacted
under Order IX Rule 13 of the CPC. However, can
the Court/Tribunal refused a reasonable
W.P.(C) No.17216 of 2017 Page 12 of 20
relief, if it does not comes within the per-view
of a particular section of law. The Legislature
in their wisdom have enacted 151 of the CPC
conferring inherent jurisdiction in Court to do
complete just between the parties irrespective
of any procedure bottle neck. The procedure is
the handmade of justice. It is only meant to
facilitate trial of a case. In the present case
liability has been imposed on the petitioner
perhaps basing upon a wrong notion that he
is the registered owner of the offending
vehicle. If his grievance is not addressed
properly, he is going to suffer most and that
too being an innocent. The procedural law
cannot create an obstacle in imparting
complete justice between the parties. In
exercising inherent jurisdiction of the Court U/S
151 of the CPC, in my considered opinion this is a
case where relief must be granted in favour of the
petitioner so as to avoid him to be a causality of
blind justice. Hence order.
ORDER
The CMA is allowed on contest against the OP
subject to payment of cost of Rs 3,000/-. The
judgment and award dated 16.5.15 is hereby set
aside. Put up on 5.12.16 for payment of cost of Rs.
3,000/- by the petitioner to the OP."
(Emphasis supplied)
15. In the relevant portion of the order, as
extracted above, though the Claims Tribunal observed
that notice was properly served on the present Opposite
Party No.2 (Petitioner in C.M.A. No.02 of 2015), but the
said order does not reflect as to when the notice was
served on the present Opposite Party No.2.
16. On perusal of the L.C.R. it is ascertained that
the Claims Tribunal vide order dated 03.01.2014 ordered
to issue notice to the Opposite Party fixing the date to
20th March, 2014 for his appearance awaiting S.R. from
the O.P. and thereafter the matter got adjourned to 19th
June, 2014, 4th July, 2014, 26th July, 2014 and again to
22nd August, 2014. On 8th September, 2014, the matter
was transferred to the Court of 2nd Additional District
Judge-cum-5th M.A.C.T., Rourkela, and the case record
was received by the said Court on 16.09.2014. After the
case record was transferred, the matter got adjourned to
25.09.2014 and then to 23.10.2014 and again to
21.11.2014, on which date it has been reflected in the
order sheet that A.D. card against Opposite Party has
been received on the very same day i.e. 21st November,
2014, to which the matter stood adjourned from
23.10.2014. But there is no such copy of notice or postal
receipt or A.D. Card available in the L.C.R. to
substantiate the plea that notice was duly sent and
served on the present Opposite Party No.2. Further, the
remark column of the order sheet of the L.C.R. under the
heading "Office Note as to action taken on order (if any)
and date" is also blank and does not indicate that
pursuant to order dated 03.01.2014 notice was issued to
the Opposite Party No.2. Apart from the same, it is
further revealed from the order sheet of case record in
M.A.C. Case No.305 of 2013 that number of corrections
have been made in orders dated 21.11.2014, 08.01.2015,
04.02.2015 and 19.02.2015 as to the purpose of posting
of the case without bearing initials of the Presiding
Officer, Claims Tribunal. That apart, there is a clear cut
manipulation in the order dated 21.11.2014. The so
called A.D. Card, which was allegedly received on
21.11.2014 from the Opposite Party No.2, is also missing
from the L.C.R. Though the Claims Tribunal, vide the
impugned order, has observed that application under
Order 9 Rule 13 of C.P.C. is not applicable to the case of
the present Opposite Party No.2 as notice was duly
served on him, the Claims Tribunal has not indicated in
the impugned order as to when the notice was served and
what was the basis to observe so in the order sheet so
also in the impugned order.
17. Apart from that, during hearing, learned
Counsel for the legal heirs of deceased-Opposite Party
No.1, who have already been substituted vide order dated
23.11.2023 passed in I.A. No.18407 of 2023, submitted
that the present Writ Petitioner-Gautam Agarwal and the
Opposite Party No.2 namely, Deepak Kumar Agarwal, S/o
Pawan Kumar Agarwal, resident of Main Road, Sector-B,
Bandamunda, Dist: Sundargarh, are brothers and since
the Zimanama was signed by the present Opposite Party
No.2 and the police paper indicates that the offending
vehicle so also the R.C. Book of the Scorpio bearing Regd.
No.OR-14R-0166 was in Zima by Deepak Kumar Agarwal,
who is the brother of the present Petitioner, the present
Opposite Party No.1 (dead) was under a bonafide
impression that Deepak Kumar Agarwal, the present
Opposite Party No.2, is the owner of the offending vehicle.
Accordingly, he was arrayed as the sole Opposite Party in
the Claim Case before the Claims Tribunal, as the said
offending vehicle had no valid insurance during the said
period.
18. From the discussions made in the foregoing
paragraphs, this Court is of the view that the Opposite
Party No.2 rightly filed an application under Order 9 Rule
13 of C.P.C. for setting aside the ex parte judgment &
order and the said provision is applicable to the facts and
circumstances of the present case because of the reasons
detailed above. In view of the admitted facts on record
that the present Petitioner as well as Opposite Party No.2
are brothers and the Petitioner was the rightful owner of
the offending vehicle during the relevant period, as was
being proved through the Opposite Party No.2 in C.M.A.
No.02 of 2015 on 08.11.2016, which was marked as
Ext.1, the Claims Tribunal was justified to pass the
impugned order, followed by subsequent order dated
20.03.2017, vide which the name of the present
Petitioner was substituted in place of Opposite Party No.2
in M.A.C. No.305 of 2013 as the sole Opposite Party and
thereafter the Claims Tribunal, vide the order dated
12.04.2014, ordered for issuance of notice to the
Petitioner, he being the legal and rightful owner of the
offending vehicle, which has not been disputed by the
Petitioner. Rather, because of the conduct of the present
Petitioner the wife of late Nabin Chandra Mahato, who
died in a road accident, was debarred to get the
compensation, who also died during pendency of the
present Writ Petition and has been substituted by her
legal heirs.
19. Law is well settled that non-mentioning of
relevant provision or mentioning of wrong provision of law
in an application/petition cannot be a ground to reject
the petition. It is the duty of the Court, which dispenses
justice, to apply the correct provisions of law so as to
deliver the relief to the party, who is entitled to it.
Admittedly, it is proved by the present Opposite Party
No.2 before the Claims Tribunal in C.M.A. No.02 of 2015
that he was not the registered owner of the offending
vehicle and rather the Petitioner is the owner of the said
vehicle. The R.C. Book of the offending vehicle was
exhibited in C.M.A. No.02 of 2015 as Ext.1, wherefrom it
is well revealed that, though the said offending vehicle
was originally registered in the name of one Kashinath
Shah, S/o Late Gopiram Shah, subsequently, the same
has been transferred to the name of Gautam Agarwal,
S/o Pawan Agarwal, the present Petitioner. Provisions
under the Motor Vehicles Act to award compensation in
favour of the Claimant being a benevolent legislation, the
Claims Tribunal has rightly passed the impugned order
in C.M.A. No.02 of 2015, thereby setting aside the
judgment and award dated 16.05.2015 passed in M.A.C.
Case No.305 of 2013. Thereafter, the Claims Tribunal
was justified to substitute the present Petitioner, who is
the brother of Opposite Party No.2 and real owner of the
offending vehicle when the accident occurred, in order to
give complete justice to the parties. Hence, this Court is
of the view that the Writ Petition deserves to be
dismissed.
20. In view of the above, the Writ Petition stands
dismissed. No order as to costs.
21. As the M.A.C. Case No.305 of 2013 is pending
since 2013, in order to avoid further delay, the Petitioner,
who is the sole Opposite Party in the said case, is
directed to appear before the Court below on 1st July,
2024. Since the legal heirs of Late Chyti Mahto have
already rendered appearance in this case, on being
substituted at the instance of the present Petitioner, they
are also directed to remain present on the said date in
person or through their Counsel before the Claims
Tribunal and may take steps for substitution. On filing
such application for substitution, the Claims Tribunal
shall do well to allow the said application on the very
same day and shall proceed further in accordance with
law and conclude the proceeding in M.A.C. Case No.305
of 2013 at the earliest, preferably within a period of three
months from the said date.
..............................
S.K. MISHRA, J.
High Court of Orissa, Cuttack
The 24th June, 2024 /Prasant
Signed by: PRASANT KUMAR PRADHAN
Reason: Authentication
Location: High Court of Orissa, Cuttack.
Date: 25-Jun-2024 18:36:17
