Counsel's negligence should not prejudice a party's claim; procedural flaws and lack of proper representation justify setting aside dismissal orders.

JUDGMENT :

SANJAY KUMAR MISHRA, J.

1. The Writ Petition has been preferred against the Order dated 13.02.2013 passed by the Additional District Judge-Cum-3rd MACT, Rourkela in CMA Case No.28 of 2011, vide which the Petition under Order 9 Rule 9 of the Code of Civil Procedure, 1908, hereinafter referred to as “Code” for brevity, filed by the Petitioners was rejected.

2. The brief background facts leading to filing of the Writ Petition in a nutshell are that the Petitioners, being legal heirs of late Umapada Mohapatra, filed a Petition under Section 166 of the Motor Vehicles Act, 1988 for compensation, which was registered as MAC Case No.314 of 2007 in the Court of Addl. District Judge-Cum-3^rd MACT, Rourkela. The Opposite Party No.1 was set ex parte on 08.10.2007 due to non-appearance after sufficient service of notice and the process against Opposite Party No.2 and Opposite Party No.3 could not be served to procure their attendance. In the meantime, the Opposite Party No.3, who is the Mother-In-Law of the Petitioner No.1, came to stay with the Petitioner and started blaming the Petitioner No.1 to be responsible for the premature accidental death of her son. Nagging and blames became torturous. The Petitioner No.1 could not live with her Mother-In-Law under in the same roof for which, she fled to the ancestral house of the deceased husband at Singhbhum along with her children. The brother of the Petitioner No.1, looking to the loss of education of Petitioner No.2, brought her to Rourkela to prosecute her studies, whereas the Petitioner No.3, minor child, remained with the Petitioner No.1.

During such long absence from Rourkela, the Petitioner No.1 could not keep contact with her Counsel nor could look after the progress of the case. As a result, the case against Opposite Party Nos. 2 and 3 was dismissed for non-compliance of the direction of the Court to take steps for issuing fresh notices against the said Opposite Parties. The Petitioner No.1 stayed as a destitute in the house of the brother of her husband in the native place. Being unable to bear the stress, strain, hardship and due to anxiety for the future wellbeing and welfare of her minor children after death of her husband dying at young age, she suffered serious ailment. The younger sister of the Petitioner No.1, knowing about her disabilities and distress, brought her to Rourkela and got her medically treated.

Due to compassion and love shown by her younger sister, the Petitioner No.1 remained under her continuous care and medical treatment and hence, could not look after the claim case initiated by her in the Court. Due to such difficulties, Petitioner No.1 could not contact with her Counsel and could not receive any information about the progress of the case.

However, after feeling little better, on 09.11.2011 the Petitioner No.1 went to her Counsel to know about the progress of the case and learnt that the Court below has disposed of the proceeding vide Order dated 27.06.2011, as the Petitioners could not adduce any evidence when called on for hearing on 14.03.2011. Thereafter, the Petitioner No.1 consulted a senior counsel to prosecute her case before the Court after verifying the records.

3. It is further case of the Petitioners that they filed a Petition under Order 9 Rule 9 & 13 read with Section 151 of the Code on 06.12.2011 before the Court below along with an Application under Section 5 of the Limitation Act, 1963 for condonation of delay supported with medical certificate