The illness ground could not recall an award passed on merits.

Sunita Agarwal, J.

1. Heard Sri Ajay Bhanot, learned counsel for the petitioner and Sri Ram Ji Singh Patel holding brief of Sri Onkar Nath for respondent Nos. 1 to 3. No one appeared on behalf of respondent No. 4-insurance company.

2. The petitioner was owner of the vehicle which was involved in the accident out of which claim petition namely, MAC No. 131 of 2001 arose. She was arrayed as opposite party No. 1 in the aforesaid claim petition. The petitioner has contested the claim by filing a written statement. She has denied the incident and the claim instituted by the claimants. The insurance company also filed written statement countering the claim of the claimants. The award was passed by the Special Judge(NDPS Act/MACT Act), Etah on 21.5.2003 and the petitioner/opposite party No. 1 was held liable for payment of compensation.

3. An application under Order IX Rule 13 CPC read with application under Section 5 of the Limitation Act was filed by the petitioner to set aside the award dated 21.5.2003 on the ground that she was prevented by sufficient cause from appearing on the date fixed in the court and an ex-parte award was passed taking recourse to provision of Order XVII Rule 2 CPC.

4. The application under Order IX Rule 13 CPC was rejected by the Court below on the ground that it was not an ex-parte award rather the claim petition was decided on merits after consideration of stand taken by the petitioner-opposite party No. 1 in the written statement filed by her. As the petitioner, who was owner of the vehicle has failed to prove that the driver was having a valid and effective driving licence on the date and time of accident, the issue No. 2 as to whether the driver was having a valid licence on the date of accident was decided against the Petitioner and it was found that the petitioner has violated the terms and conditions of the insurance policy and hence was liable to pay the compensation. Assailing the order dated 4.10.2005 passed by the court below rejecting application under Order IX Rule 13 CPC, as also the award dated 21.5.2003 stating to be an ex-parte award, the present writ petition has been filed.

5. Learned counsel for the petitioner submits that the Court below has committed illegality in treating the award having been passed on merits and not an ex-parte award taking recourse to provisions of order XVII Rule 2 CPC.

6. In the present case, 8.5.2003 was the date fixed for evidence of the petitioner-opposite party No. 1 but she could not appear before the court below on the date fixed on account of illness. Cogent evidence in the form of medical certificate was filed by the petitioner- opposite party No. 1 before the court below in order to establish that the petitioner was prevented by sufficient cause from appearing on the date fixed when the case was called out for hearing and it was clearly established that absence of petitioner-opposite party No. 1 was not intentional. The Court below has committee illegality in ignoring the same. The Court below has accepted bona fide of the petitioner and also authenticity of the medical certificate and has recorded a finding that the certificate submitted by the petitioner was sufficient for condoning delay in filing the application. However, the said documents were not considered for condoning the absence of the petitioner beyond her control on the dates fixed i.e. 8.5.2003 and 21.5.2003. A patent illegality has been committed in recording the finding that the petitioner remain intentionally absent on the aforesaid dates before the Court below. This approach of Court below is self destructive. For appreciation of evidence, presence of parties of the litigation is mandatory and the Court below has illegally rejected the application on the ground that the counsel for the petitioner-opposite party No. 1 did not appear and argued the case on the date fixed and hence the award could not be treated as an ex-parte award. Further submission of learned counsel for the petiti