The failure to conduct an inquiry into the service of summons and the date of knowledge constitutes a miscarriage of justice, warranting the remittance of the matter for a fresh order.

ORDER :

Mr. Birendra Kumar, J. - Heard the parties.

2. Appellant is aggrieved by order dated 15.05.2006 passed in Civil Misc. Case No.44/2004, whereby, an application filed under Order 9 Rule 13 CPC by the appellant for setting aside ex-party award dated 13.02.2003 passed in Claim Case No.237/1996 was dismissed.

3. The dismissal is on the ground that the appellant had not stated in his application dated 10.08.2004 filed under Order 9 Rule 13 CPC about date of knowledge of ex-party award therefore, the same was filed beyond period of limitation.

4. The record reveals that on 13.02.2003, an award was made by the Motor Accident Claims Tribunal in Claim Case No.237/1996 in favour of the claimant-respondent No.1. The appellant was said to be the driver of the offending vehicle. The summons sent against the appellant was reported served on refusal to accept notice. The appellant specifically stated in the application under Order 9 Rule 13 CPC that the appellant was never summoned nor the appellant ever refused the summons. The service reporter did not state that a copy of the summons was pasted on the house of the appellant nor it was in-fact pasted. Hence, a false and fabricated report was submitted.

5. In view of the averment aforesaid, the learned Court below should have conducted an inquiry giving opportunity to lead evidence to the parties and to cross-examine the witnesses of the rival party to establish disputed question of fact which was not done.

6. It is a fact that in the application under Order 9 Rule 13 CPC, the appellant did not state about the date of knowledge of the ex-party award dated 13.02.2003. Article 123 of the Limitation Act reads as follows:-

7. Evidently, the claim of the appellant before Court below was that summons or notices were not duly served. The limitation would start running from date of knowledge. During inquiry, the appellant including other witnesses could have been examined and cross-examined regarding date of knowledge. Only for technical lapses in not making clear statement regarding date of knowledge in application under Order 9 Rule 13 CPC, the said application should not have been dismissed leading to miscarriage of justice. If the Court below would have allowed prayer of the appellant, the only thing which could have happened that the matter would have been decided after hearing the parties to the best of satisfaction of the parties to contest the matter. Therefore, for substantial justice, the impugned order is set aside and the matter is remitted back to the Court below to pass fresh order after due inquiry.

8. Accordingly, the instant appeal stands allowed.

9. The parties shall appear before the Court below on 12.12.2023 and the Court below shall proceed in accordance with law.