The High Court
Case Details
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 ------------------------------------------------------------------------------------------- Date of Judgment: 24.06.2024 Date of Hearing: 18.04.2024 ------------------------------------------------------------------------------------------- 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
Legal Reasoning
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.
Legal Reasoning
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 in that case to pay petitioner who was OP 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 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. petitioner present on 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 imparting cannot create an obstacle complete 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. justice between the parties. in
Decision
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. W.P.(C) No.17216 of 2017 Page 13 of 20 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 W.P.(C) No.17216 of 2017 Page 14 of 20 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 W.P.(C) No.17216 of 2017 Page 15 of 20 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 W.P.(C) No.17216 of 2017 Page 16 of 20 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 W.P.(C) No.17216 of 2017 Page 17 of 20 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 W.P.(C) No.17216 of 2017 Page 18 of 20 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. W.P.(C) No.17216 of 2017 Page 19 of 20 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 W.P.(C) No.17216 of 2017 Signature Not Verified Digitally Signed Signed by: PRASANT KUMAR PRADHAN Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 25-Jun-2024 18:36:17 Page 20 of 20