JUDGMENT :

B.R. Sarangi, J.

1. This application is directed against an order dated 09.04.2013 passed by the 1st MACT, Cuttack by which while setting aside the order of dismissal dated 21.12.2002 and restoring MAC No. 975/1996 to file, the MACT observed that the petitioner is not entitled to any interest on her claim till the date of restoration.

2. The factual matrix of the case, in hand, is that the petitioner being the mother of one Mami Behera, a girl child aged about 5 years, who died in a motor vehicle accident, filed an application before the Motor Accidents Claims Tribunal, Cuttack for grant of compensation under Section 166 of the Motor Vehicles Act, which was registered as Misc. Case No. 975 of 1996 and was posted to 21.12.2002, but the same was dismissed for default of the petitioner. The petitioner in order to restore the aforesaid claim petition filed M.J.C. 118 of 2005 under Order 9, Rule 4 of the Code of Civil Procedure with an application under Section5 of the Limitation Act. The said M.J.C. No. 118 of 2005 was taken up for hearing on 04.04.2013. The learned Tribunal by his order dated 09.04.2013 allowed the application and directed restoration of the original case to file, but while directing so, observed that the petitioner is not entitled to any interest on her claim till the date of restoration.

3. Mr. A.K. Otta, learned counsel for the petitioner states that the provisions contained in Order 9 Rule-4, C.P.C. does not contemplate any condition for restoration of the case to file. Section 171 of the MV Act, 1988 only empowers the learned Tribunal to grant additional interest while passing an award allowing the claim for compensation but the learned Tribunal while allowing restoration under Order-9 rule 4, by setting aside the order of dismissal dated 21.12.2002 has no jurisdiction to observe that payability of interest on the claim till the date of restoration which is not permissible under law. To substantiate his contention he has relied upon the judgment of this court in Achhuti @ Achyutananda Bal v. Payodhar Bal and others, 1992 (II) OLR 382(QB).

4. Mr. S. Khuntia, learned counsel for opposite party No. 1, the owner of the vehicle states that since it is the matter between the petitioner and the Court, he has nothing to reply.

5. Mr. S. Roy, learned counsel for opposite party No. 2 - Insurance Company states that for the laches of the petitioner if the Misc. Case No. 975 of 1996 had been dismissed for default on 21.12.2002 and the same has been restored to file considering the application filed under Order-9 Rule 4 C.P.C. and the application filed in M.J.C. No. 118 of 2005, for the period between the date of dismissal and the date of restoration, the opposite party is not liable to pay any interest on adjudication of the dispute. Therefore, the learned Tribunal is justified in passing the impugned order.

6. On the facts pleaded above it is to be examined Order-9 Rule-4 C.P.C. which reads as follows:

"Plaintiff may bring fresh suit or Court may restore suit to file.-Where a suit is dismissed under Rule 2 or Rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit; or he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for such failure as is referred to in Rule 2, or for his non appearance, as the case may be, the Court shall make an Order setting aside the dismissal and shall appoint a day for proceeding with the suit.

ORISSA HIGH COURT AMENDMENT

Insert the following proviso to Rule 4 of Order-9 of the Code namely-

"Provided that in cases where the defendant had entered into contest by filing his defence, no suit shall be restored without notice to him."

7. On perusal of the above mentioned provision, it is made clear that if a suit is dismissed under Order-9, Rule-2 or Rule-3, C.P.C., the plaintiff may bring a fresh suit or he may apply for an order to set aside the dismissal order passed by the court with a condition that he has s