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1992 Supreme(All) 57
IN THE HIGH COURT OF ALLAHABAD
B. L. YADAV
OM PRAKASH MALHOTRA - Appellant
Versus
NIRLA - Respondents
CIV. REVN. 358 Of 1991
Decided On : 01/29/1992
R.K.PORVAL
The provisions of Order 9 of the Code, including Rules 6, 7, and 8, are applicable to the proceedings before the Motor Accident Claims Tribunal by virtue of Rule 21 of the Rules, and the Tribunal has the jurisdiction to impose a cost as a condition for recalling an ex parte order.
Headnote:
MOTOR ACCIDENT CLAIMS TRIBUNAL - COST IMPOSITION - ORDER 9 RULE 7 OF THE CODE OF CIVIL PROCEDURE, 1908 - APPLICABILITY - U.P. MOTOR ACCIDENT CLAIMS TRIBUNAL RULES, 1967 - RULE 21 - APPLICABILITY - JURISDICTION OF TRIBUNAL TO IMPOSE COST WHILE RECALLING ORDER PURPORTING TO HAVE BEEN PASSED UNDER ORDER 9 RULE 7 OF THE CODE.
Fact of the Case:
The applicant, the owner of the vehicle involved in an accident, challenged the order of the Motor Accident Claims Tribunal imposing a cost of Rs. 25,000/- as a condition for recalling an ex parte order passed against him. The applicant argued that the Tribunal lacked jurisdiction to impose such a cost, and that the provisions of Order 9 Rule 7 of the Code of Civil Procedure, 1908 (the Code) did not apply to the proceedings before the Tribunal.
Finding of the Court:
The court held that the provisions of Order 9 of the Code, including Rules 6, 7, and 8, were applicable to the proceedings before the Tribunal by virtue of Rule 21 of the U.P. Motor Accident Claims Tribunal Rules, 1967 (the Rules). The court further held that the Tribunal had the jurisdiction to impose a cost as a condition for recalling the ex parte order, and that the impugned order was not passed in excess of jurisdiction or illegally.
Issues: 1. Whether the provisions of Order 9 of the Code apply to the proceedings before the Motor Accident Claims Tribunal? 2. Whether the Tribunal had the jurisdiction to impose a cost as a condition for recalling the ex parte order?
Ratio Decidendi: 1. Rule 21 of the Rules provides that certain provisions of the Code, including Order 9, shall apply in proceedings before the Tribunal. 2. Rule 7 of Order 9 empowers the court to impose a cost or otherwise as a condition for recalling an ex parte order.
Final Decision: The court dismissed the revision petition, holding that the Tribunal had the jurisdiction to impose a cost as a condition for recalling the ex parte order and that the impugned order was not passed in excess of jurisdiction or illegally.
( 1 ) WHETHER a Motor Accident Claims Tribunal Constituted u / S. 165 of the Motor Vehicles Act, 1988, (far short the Act), can impose cost while recalling an order purporting to have been passed under Order 9 Rule 7 of the Code of Civil Procedure, 1908, (for short the Code), is the short but significant question that falls for determination in this Civil Revision filed by opposite parties (the defendant) in a motor accident claim preferred by opposite parties 1 to 6 against the applicant, the owner of the vehicle and opposite party No. 7.
( 2 ) THE facts need not detain much as the same are admitted. A claim petition was filed by opposite parties 1 to 6 against the applicant, the owner of the vehicle and opposite party No. 7 the National Insurance Co. It was alleged that one Jagat Narain, the husband of opposite party No. 1 Smt. Nirmala Kumari and father of opposite party No. 2 died in an accident caused by the truck belonging to applicant. A claim for a sum of Rs. 317600. 00- was made by opposite parties 1 to 6 against the applicant and opposite party No. 7. The notices were issued to the applicant to appear and file written statement by 23-3-90 and 30-3-90 was fixed for framing issues. In spite of notice to the applicant, he did not appear on 23-3-90 nor on 30-3-90, rather he had come earlier to Etawah on 15-3-90 and engaged one Sri G. D. Misra, Advocate, but he did not inform the progress nor he appeared on the date fixed. Later on when the applicant enquired into and came to Etawah on 1-4-91 it transpired that Sri G. D. Misra died and the applicant was not informed. The order to proceed ex parte against the revisionist was passed on 21-8-90. On 2-4-91 the applicant engaged another counsel Sri Ashok Kumar Tewari and moved an application purporting to be under Order 9 Rule 8 of the Code to recall the earlier order dated 21-8-90. On 3-491 the application of the applicant was allowed and he was directed to file written statement provided he deposits Rs. 25,000 / - in the court within a week. Against that order the present civil revision has been filed.
( 3 ) SRI R. K. Porwal, learned counsel for the applicant urged that the provisions of Order 9 Rules 7 and 8 of the Code would apply, the applicant personally was not at fault, rather his advocate did not appear nor informed the applicant and the applicant could not know about the date fixed or the progress in the case. Consequently the application for restoration ought to have been allowed without any cost or deposit of any amount and the Tribunal has exceeded its jurisdiction in allowing the application for restoration directing the applicant to file written statement on the condition that the applicant shall deposit Rs. 25,000. 00 -. In any case nominal cost could have been imposed.
( 4 ) LEARNED counsel for the opposite party, on the other hand, however, urged that u / S. 169 read with S. 176 of the Act the State Government could frame rules for the purpose of carrying into effect the provisions of Ss. 165 to 174 including the procedure and powers of Claims Tribunal. As the State of U. P. has already framed U. P. Motor Accident Claims Tribunal Rules, 1967 (for short the Rules), they would continue to apply till the new rules were framed and under Rule 21 the provisions of the Code, particularly Order 9 has been made applicable. Under Rule 16 in case on the date fixed some party appears and wants adjournment, the same can be allowed on payment of cost etc. Under Rule 7 of Order 9, on the date of adjourned hearing in case the defendant appears and shows good cause for non-appearance, the order to proceed ex parte can be recalled subject to payment of cost etc. or otherwise. Under the circumstances the Tribunal has passed order wholly within its jurisdiction and it did not commit any jurisdictional error.
( 5 ) HAVING heard learned counsel for the parties, the point for determination is as to whether the provisions of Order 9 applies, and if so, whether the Tri
