The absence of an ex-parte order against the owner rendered the application under Order IX Rule 13 of CPC not maintainable.

JUDGMENT

Rekha Borana, J. - The present appeal has been filed against the order dated 16.09.2019 whereby an application under Order IX Rule 13 of the Code of Civil Procedure (CPC) preferred by the appellant-owner of the vehicle has been rejected by the learned MACT, Salumber (hereinafter referred to as ’Tribunal’).

2. The facts of the case are that a claim petition under the Motor Vehicles Act was preferred by one Smt. Chatar Kunwar pertaining to an accident by a vehicle of which the present appellant-Arvind Sharma was the owner. In the said proceedings, a reply was preferred by the appellant-owner but no evidence was led on his behalf. Ultimately, the award dated 24.08.2015 was passed by the learned Tribunal whereby the insurance company was exonerated and the driver and the owner of the vehicle were held liable for compensation.

3. After four years of the said award being passed, an application under Order IX Rule 13 read with Section 151 of CPC was preferred by the owner with an averment that after filing of the reply on his behalf, the counsel engaged by him did not appear before the Tribunal and therefore, ex-parte proceedings were initiated against him which, be set aside.

4. Learned Tribunal proceeded on to reject the application on the ground that during the complete proceedings, no order of proceeding ex-parte against the appellant-owner was ever passed. Neither any of the order-sheet shows that the Tribunal had directed to proceed ex-parte against the owner nor the award dated 24.08.2015 mentions so. Therefore, the Tribunal reached to a specific conclusion that when there is no order to proceed ex-parte, no question to set aside a fictitious order arise. The Tribunal specifically found that there is no order in existence which can be set aside in the present matter. The Tribunal therefore, reached to a specific conclusion that the application under Order IX Rule 13, CPC itself is not maintainable and therefore, proceeded on to reject the same. Moreover, the Tribunal also held that the application was filed after four years of the award and therefore, was also liable to be rejected on the ground of limitation.

5. This Court is of the specific opinion that there is no illegality in the order dated 16.09.2019 passed by the learned Tribunal. As held by the Tribunal, in the absence of any order of proceeding ex-parte against the owner, no order on an application under Order IX Rule 13, CPC could have been passed by the Tribunal.

6. In view of the above observations, the present appeal being devoid of merits is dismissed.

Stay application also stands dismissed.