The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK W.P.(C) No.10670 of 2013 Nandita Mohapatra & others ...... Petitioners -Versus- Salias Oram and others .…... Opposite Parties For Petitioners : Mr. Biswajit Nayak, Advocate For Opp. Parties : Mr. P.K. Mahali, Advocate (for O.P. No.2-Insurance Company) ----- CORAM: JUSTICE SANJAY KUMAR MISHRA ________________________________________________________________ Date of Hearing and Judgment: 18.10.2023 ________________________________________________________________ S.K. Mishra, J. 1. The Writ Petition has been preferred against the Order dated 13.02.2013 passed by the Additional District Judge-Cum-3rd MACT, Rourkela in CMA Case No.28 of 2011, vide which the Petition under Order 9 Rule 9 of the Code of Civil Procedure, 1908, hereinafter referred to as “Code” for brevity, filed by the Petitioners was rejected. 2. The brief background facts leading to filing of the Writ Petition in a nutshell are that the Petitioners, being legal heirs of late Umapada W.P.(C) No.10670 of 2013 Page 1 of 12 Mohapatra, filed a Petition under Section 166 of the Motor Vehicles Act, 1988 for compensation, which was registered as MAC Case No.314 of 2007 in the Court of Addl. District Judge-Cum-3rd MACT, Rourkela. The Opposite Party No.1 was set ex parte on 08.10.2007 due to non-appearance after sufficient service of notice and the process against Opposite Party No.2 and Opposite Party No.3 could not be served to procure their attendance. In the meantime, the Opposite Party No.3, who is the Mother-In-Law of the Petitioner No.1, came to stay with the Petitioner and started blaming the Petitioner No.1 to be responsible for the premature accidental death of her son. Nagging and blames became torturous. The Petitioner No.1 could not live with her Mother-In-Law under in the same roof for which, she fled to the ancestral house of the deceased husband at Singhbhum along with her children. The brother of the Petitioner No.1, looking to the loss of education of Petitioner No.2, brought her to Rourkela to prosecute her studies, whereas the Petitioner No.3, minor child, remained with the Petitioner No.1. During such long absence from Rourkela, the Petitioner No.1 could not keep contact with her Counsel nor could look after the progress of the case. As a result, the case against Opposite Party Nos. 2 and 3 was dismissed for non-compliance of the direction of the Court to take steps for issuing fresh notices against the said Opposite W.P.(C) No.10670 of 2013 Page 2 of 12 Parties. The Petitioner No.1 stayed as a destitute in the house of the brother of her husband in the native place. Being unable to bear the stress, strain, hardship and due to anxiety for the future wellbeing and welfare of her minor children after death of her husband dying at young age, she suffered serious ailment. The younger sister of the Petitioner No.1, knowing about her disabilities and distress, brought her to Rourkela and got her medically treated. Due to compassion and love shown by her younger sister, the Petitioner No.1 remained under her continuous care and medical treatment and hence, could not look after the claim case initiated by her in the Court. Due to such difficulties, Petitioner No.1 could not contact with her Counsel and could not receive any information about the progress of the case. However, after feeling little better, on 09.11.2011 the Petitioner No.1 went to her Counsel to know about the progress of the case and
Decision
learnt that the Court below has disposed of the proceeding vide Order dated 27.06.2011, as the Petitioners could not adduce any evidence when called on for hearing on 14.03.2011. Thereafter, the Petitioner No.1 consulted a senior counsel to prosecute her case before the Court after verifying the records. W.P.(C) No.10670 of 2013 Page 3 of 12 3. It is further case of the Petitioners that they filed a Petition under Order 9 Rule 9 & 13 read with Section 151 of the Code on 06.12.2011 before the Court below along with an Application under Section 5 of the Limitation Act, 1963 for condonation of delay supported with medical certificate to substantiate the stand taken in the said petition. As the case was disposed of due to non-prosecution and non-filing of evidences without answering the issues, the said petition was mechanically rejected by the court below on the ground that since nil award has been passed, the Petition U/O-9 Rule-9 is not maintainable. 4. Opposing to the prayer made in the Writ Petition, a Counter Affidavit has been filed by the Opposite Party No.2-Insurance Company taking a plea therein that the present Petitioners, were habitually negligent in prosecuting the claim case before the court below, which led to the consequence of passing of the dismissal order, now under challenge. Despite granting number of opportunities to adduce evidence, the Petitioners did not comply the orders of the court below, which led to the adverse consequence caused to the Petitioners by the impugned order. The Claim Case i.e. M.A.C. No.317 of 2007, was presented on 17.08.2007 by the Petitioners, who were granted sufficient opportunities to adduce oral/documentary evidence. Ultimately, the Tribunal dismissed the case for non-prosecution vis-à- vis on merits, after six years i.e. on 13.02.2013, with sufficient reasons W.P.(C) No.10670 of 2013 Page 4 of 12 and justifications. The reasons assigned for such non-prosecution and failure to adduce evidence on repeated calls were not sufficient and lack any justification whatsoever. Hence, was rightly rejected. The prayer made in the writ petition merits no further indulgence or interference by this Court. 5. Mr Nayak, learned counsel for the Petitioner submits, the Opposite Party No.2-Insurance Company opposed to the said prayer of the Petitioners before the court below on the ground that the delay has not been properly explained. That apart, the prayer to condone the delay was also opposed on the ground of filing the same after a long gap of more than 14 months so also on the ground of alleged false and fabricated plea. Though no such ground was taken in the objection filed by the Opposite Party No.2-Insurance Company alleging the Order dated 27.06.2011 to be a nil award and Petition U/O-9 Rule-9 is not maintainable, the Court below, though vide order dated 27.06.2011 observed that the claim application of the Petitioners is disposed of without any award in absence of any oral and documentary evidence, but while rejecting the Petition filed by the present Petitioners vide impugned Order dated 13.02.2013 in CMA No.28 of 2011, contrary to its observation made in order dated 27.06.2011, erroneously mentioned that in absence of any other proof in support of the claim in support of the rash and negligent use W.P.(C) No.10670 of 2013 Page 5 of 12 of the motor vehicle, the Tribunal had no other option than to pass a nil award. It was further observed that dismissal of the claim petition was not for default, but for the failure of the claimants in substantiating their claims, even to the extent of ex-facie justifying it in the least. Mr. Nayak further submits, though the Opposite Party/Insurance Company has filed a Counter Affidavit, no such stand has been consciously taken by the said Opposite Party with regard to passing of the nil award or with regard to maintainability of the present writ petition on the ground that one of the impugned order dated 27.06.2011 being a nil award, the present Petitioners ought to have preferred an Appeal instead of the present writ petition. 6. Mr. Nayak, learned Counsel for the Petitioners draws attention of this Court to the order sheet in M.A.C. no. 314 of 2007 (Anneure-1 Series) and submits, vide order dated 27.06.2011 the claim application filed by the Petitioners was disposed of without passing any award on the ground that no evidence, either oral or documentary, has been adduced and there is no need for the Opposite Parties to adduce any evidence or furnish rebuttal evidence. Though the Opposite Party No.1 was set ex parte vide order dated 08.10.2007 and no petition was filed by the Opposite Party No.1-Insurance Company to recall the said ex parte order after closing evidence from the side of the Petitioners vide order dated 14.03.2011, the matter was posted to W.P.(C) No.10670 of 2013 Page 6 of 12 08.04.2011 for evidence from the side of the Opposite Party No.1. Thereafter, though the said Opposite Party was found absent on the subsequent dates, the Court below, despite filing time petition by the learned counsel for the Petitioners, illegally and erroneously disposed of the claim application without passing any Award on the ground that since no oral or documentary evidence has been adduced by the claimants, there is no need for the opposite parties to adduce evidence or furnish rebuttal evidence. 7. Mr. Mahali, learned Counsel for the Opposite Party No.2 submits, though the Court below intended to pass a nil award but instead of passing such an award in a proper form, award has been passed in form of an order dated 27.06.2011. He further submits, rightly the impugned Order dated 13.02.2013 has been passed rejecting the Petition on the ground of maintainability of CMA No.28 of 2011, observing therein that the Petitioners, instead of preferring an Appeal, have filed Petition under Order 9 Rule 9 of the Code to set aside the nil award passed by the Tribunal. 8. Mr. Mahali, learned Counsel for the Opposite Party No.2- Insurance Company further submits, since there was no fault on the part of the Insurance Company, if the matter is remitted back to the Court below for fresh adjudication of the Claim Application, the Petitioners will not be entitled for any interest till the date of W.P.(C) No.10670 of 2013 Page 7 of 12 adjudication of the said claim case, if any award is passed in favour of the Petitioners. (Claimants before the Court below). 9. As is revealed from the entire order-sheet in M.A.C. No. 314 of 2007, annexed to the Writ Petition as Annexure-1 Series, on 01.10.2010 Parties were found absent. As fresh step for issuance of notice afresh against Opposite Party Nos. 2 and 3 was not taken in terms of the previous order, the case against the said Opposite Parties stood dismissed for default. The Petitioner was called upon to adduce evidence against the Opposite Party No.1 on 14.12.2010, on which date the Presiding Officer was on leave. Thereafter, on 14.03.2011 though Advocate of the Petitioners filed a Petition for time to adduce evidence later, at 4.30 P.M., instead of allowing time, the Court below closed the evidence from the side of Claimants/Applicants. For ready reference, the Order dated 14.03.2011 is extracted herewith: “14.03.2011 Advocate for the petitioners files petition for time to adduce evidence which is heard and since the case against OP Nos. 2 & 3 have been dismissed for default vide order dtd. 01.10.11, put up at 4.30 P.M. for evidence if any for the side of the Petitioner. Sd/-MACT W.P.(C) No.10670 of 2013 Page 8 of 12 Later. At 4.30 P.M. No step is taken by advocate for the petitioners. No evidence is adduced. As such, the petitioners’ evidence is closed. Case to 08.04.2011 for evidence for the side of O.P. No.1 if any in shift Court.” Sd/-MACT (Emphasis supplied) Thereafter, the matter got adjourned to 11.04.2011. On that day, as the Presiding Officer was on leave, the case got further adjourned to 10.05.2011 for evidence from the side of O.P. No.1. However, on the said date, though Counsel for the Petitioners was present, as the O.Ps. were absent on call, the matter got adjourned to 27.06.2011, on which date one of the impugned Orders was passed by the Court below observing as follows: “27.06.2011. The petitioner has not adduced any evidence either oral or documentary in support of the claim. Thus, there is no need for the Ops. to adduce any evidence or furnish rebuttal evidence. The application is accordingly disposed of without any award.” (Emphasis supplied) 10. Law is well settled that due to fault of the lawyer, the Party should not suffer. Admittedly, as is revealed from the Order Sheets, because of non-taking of steps by the learned Counsel for the Petitioners for issuance of notice to the Opposite Party Nos. 2 and 3, W.P.(C) No.10670 of 2013 Page 9 of 12 the claim application was dismissed against the said Opposite Parties. Further, despite filing Petition for time, the Court below rejected the same debarring the Petitioners to adduce evidence. That apart, because of the reasons as detailed above, the Petitioner No.1 could not contact the lawyer to do the needful to expedite the disposal of the case on merit. 11. From the pleadings so also arguments advanced by the learned Counsel for the Parting as detailed above, materials available on record and the certified copy of the entire order sheet in MAC No.314 of 2007, this Court is of the view that there is a gross procedural flaw and despite filing Petition for time to adduce evidence, the Court below was not justified to close the evidence from the side of the Petitioners on the very same day i.e. 14.03.2011, at around 4.30 P.M., ordering to post the matter to 08.04.2011 for evidence from the said of Opposite Party No.1, though the said Opposite Party No.1(owner of the vehicle ) had already been set ex parte on 08.10.2007. Further, this Court is of the view that the Court below was not justified to pass the impugned Order dated 27.06.2011 ordering therein to dispose of the claim application of the Petitioners without passing an award/nil award and subsequently styling the said order to be a nil award. As it was an order, the Petitioners were justified to file Petition under Order 9 Rule 9, read with Section-151 of the Code to set W.P.(C) No.10670 of 2013 Page 10 of 12 aside the said Order dated 01.10.2010 for dismissal of the claim application against Opposite Party Nos. 2 and 3 so also the Order dated 27.06.2011, vide which the claim application of the Petitioners was dropped/disposed of. Accordingly, the Order dated 27.06.2011 passed in MAC No.314 of 2007 so also Order dated 13.02.2013 passed in CMC No. 28 of 2011 are hereby set aside. 12. In view of the setting aside the Orders as detailed above, the Order dated 01.10.2010, vide which the claim application was dismissed against the Opposite Party Nos. 2 and 3 for non-taking of steps for issuance of notice afresh to the said opposite parties, is also hereby set aside. 13. As the claim was arising out of an accident occurred way back on 29.05.2007 and the owner Opposite Party No1 in MAC No.314 of 2007 has already been set ex parte since 08.10.2007 and the OP- Insurance Company, being noticed, has rendered appearance before this Court, the matter is remitted back to the Court below with an observation that the Present Petitioners so also Opposite Party No.2- Insurance Company will appear before the Court below on 20.11.2023, at 11.00 A.M., either in person or through their respective Counsel. The OP-Insurance Company shall file its Written Statement in MAC No.314 of 2007 on the said date. Thereafter, the Court below will fix a date and proceed further on merit, giving opportunity of hearing to the W.P.(C) No.10670 of 2013 Page 11 of 12 Parties and decide the matter expeditiously, preferably within a period of six months from the said date. 14. With the above observation the Writ Petition stands disposed of. No order as to costs. 15. Urgent certified copy of this judgement be granted on proper application as per rule. That apart, in order to avoid delay, parties are at liberty to act upon the digitally signed copy of this judgement available in the official website of the Court. (S.K. MISHRA) (JUDGE) Orissa High Court, Cuttack Dated, 18th October, 2023/Padma Signature Not Verified Digitally Signed Signed by: PADMA CHARAN DASH Designation: Personal Assistant Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 26-Oct-2023 10:54:02 W.P.(C) No.10670 of 2013 Page 12 of 12