An appeal under S. 173 of the Motor Vehicles Act, 1988 is not maintainable if the appellant fails to deposit half of the awarded amount.

( 1 ) THIS appeal is filed under S. 173 of M. V. Act, 1988. A preliminary objection is raised by Shri B. N. Malhotra, counsel for respondent No. 4 that the appeal is incompetent and cannot be entertained as the appellant with the appeal did not deposit the half of the awarded amount. The award being for Rs. 50,000/ -.

( 2 ) ON the other hand, the appellant submits that he wants to 'withdraw' the appeal, and therefore, prays that the appeal be allowed to be 'withdrawn'.

( 3 ) THE claimants' counsel Shri J. P. Shrivastava appearing for respondents 1 and 2 submits that since the respondents have filed cross-objections in the appeal, therefore, even if the appeal is allowed to be withdrawn, the cross-objections are still required to be heard and determined. The contention of Shri Shrivastava is based on the provisions of sub-rule (4) of R. 22 of O. 41, C. P. C. , which provides that -"rule 22 - (1) to (3) xxx xxx xxx (4) Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit. "

( 4 ) THE contention as advanced by Shri J. P. Shrivastava appears to be attractive at the threshold thought, but it has no substance when considered in the situation of the appeal itself being not maintainable.

( 5 ) UNDER S. 173 of the Motor Vehicles Act, if an appeal by a person, who is required to make payment of any amount under the award, is preferred against the award, the same shall not be competent and would not be entertainlible if 50% of the awarded amount or Rs. 25,000/-, whichever is less, is not deposited in the Court. It would be relevant to reproduce S. 173 of the Motor Vehicles Act, 1988:-"173. Appeals. (1) Subject to the provisions of sub-sec. (2), any person aggrieved by an award of a Claims Tribunal may, within ninety days from the date of the award, prefer an appeal to the High Court :provided that no appeal by the person who is required to pay any amount in terms of such award shall be entertained by the High Court unless he has deposited with it twenty five thousand rupees or fifty per cent. of the amount so awarded, whichever is less, in the manner directed by the High Court :provided further that the High Court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time. (2) No appeal shall lie against any award of a Claims Tribunal, if the amount in dispute in the appeal is less than ten thousand rupees. "

( 6 ) CONSTRUING a similar clause, Supreme Court in Vijay Prakash D. Mehta v. Collector of Customs (Preventive) Bombay, AIR 1988 SC 2010, observed that (para 9) :-"9. Right to appeal is neither an absolute right nor an ingredient of natural justice the principles of which must be followed in all judicial and quasi-judicial adjudications. The right to appeal is a statutory right and it can be circumscribed by the conditions in the grant. "it was further observed that (para 13) :-". . . . . . . . . . . . . If the Statute gives a right to appeal upon certain conditions, it is upon fulfilment of these conditions that the right becomes vested and exercisable to the appellant. . . . . . . . . . . . . . . . . "

( 7 ) FURTHER the first proviso to sub-sec. (1) of S. 173 of the Motor Vehicles Act, puts an embargo on the Courts' jurisdiction to entertain the appeal, when the condition provided therein is not fulfilled. The failure in this regard would make the appeal not maintainable.

( 8 ) SHRI J. P. Shrivastava, appearing for respondents 1 and 2 has tried to link the word 'entertain' with 'receive' to contend that once an appeal is received by the Court and the cross-objections are also filed, the Court even on the dismissal of appeal is still required to determine the cr