The extension of time for filing an appeal is a matter of concession and cannot be claimed as an absolute right.

P.S. Rana, J.

Applicants filed application under Section 5 of Limitation Act for condonation of delay in filing the appeal under Section 173 of Motor Vehicles Act relating to award passed by Motor Accident Claims Tribunal-II Solan announced in Petition No. 13-S/2 of 2008 decided on dated 4.12.2008 titled Rajesh Kumar vs. Jagdish Chand and others. Award was passed on dated 4.12.2008 and present appeal filed on dated 4.10.2013. Appeal was returned with objections and thereafter same was filed on dated 16.04.2014. It is pleaded that CMPMO No. 355 of 2009 titled Oriental Insurance Company Ltd. and others vs. Motor Accident Claims Tribunal-II Solan was filed before Hon’ble High Court of H.P. and Hon’ble High Court of H.P. vide order dated 26.4.2012 held that no order was required to be passed in view of decision of Hon’ble Supreme Court in United India Insurance Co. Ltd. vs. Shila Datta and others reported in 2011 ACJ 2729. It is pleaded that thereafter again the matter was listed before Hon’ble High Court of H.P. on dated 11.6.2013 and Hon’ble High Court of H.P. had passed the order that case was wrongly listed because petition already decided by Hon’ble High Court of H.P. on dated 26.4.2012. It is pleaded that after seeking requisite approval from higher authorities the case was recommended for filing the appeal and immediately thereafter present appeal was filed. Prayer for condonation of delay sought.

2. Per contra response filed on behalf of non-applicants pleaded therein that applicants are estopped from filing the present application on account of the fact that matter already stood decided by Hon’ble High Court in CMPMO No. 355 of 2009 on dated 26.4.2012 and 11.06.2013. It is further pleaded that on dated 26.4.2012 and 11.6.2013 case was decided by Hon’ble High Court of H.P. in presence of learned Advocate appearing on behalf of Oriental Insurance Company and further pleaded that Hon’ble High Court of H.P. did not grant any liberty to applicants to file fresh appeal on same cause of action. It is also pleaded that in view of above stated facts application filed under Section 5 of Limitation Act be dismissed.

3. On dated 9.1.2015 following issues were framed:-

1. Whether there are sufficient grounds to condone the delay as alleged? ….Onus upon applicants.

2. Whether applicants have no cause of action to file the application under Section 5 of Limitation Act as alleged? ….Onus upon non-applicants

3. Relief.

4. Applicants examined following oral witnesses:-     

4.1 Applicants tendered following documentary evidence:-

5. Court heard learned Advocate appearing on behalf of the applicants and learned Advocates appearing on behalf of the non-applicants and also perused the record carefully.

6. Testimonies of oral witnesses:-

6.1 AW1 Ms. Monika Saini Junior Assistant in High Court of H.P. has stated that she has brought record of CMPMO No. 355 of 2009 titled Oriental Insurance Company Ltd. vs. MACT-II Solan and this petition was instituted on dated 27.4.2009. She has stated that certified copy of petition is Ext.AW1/A which is correct as per record. She has stated that copy of order dated 26.4.2012 is Ext.AW1/B which is correct as per original record. She has stated that copy of order da