The absence of a specific provision for appeal against the order passed under Order IX, Rule 3, Civil Procedure Code led to the dismissal of the appeal.

R.D. Shukla, J.

1. This appeal is directed against the order dated 17.2.1984 of Motor Accidents Claims Tribunal, Dhar, passed in Claim Case No. Ill of 1980 whereby the claim petition has been dismissed for non-appearance and non-prosecution of the case by the claimant.

2. Brief history of the case is that the claimant (appellant here) filed a claim on 11.12.1980 with the assertions that his father Lalu died due to rash and negligent driving of the vehicle by respondent No. 2, Kehar-singh, driver of the vehicle, on 26.9.1980 at about 10 a.m. The accident is said to have occurred on A.B. Road near Dhamnod. The case was being adjourned for non-payment of process fee and the correct address of the respondents. A substituted service by publication in the newspaper was directed, vide order dated 17.1.1984 and the case was fixed for 17.2.1984. The claimant did not appear on 17.2.1984. Respondents also did not make their appearance. Therefore, the claim was dismissed in the absence of the claimant. This appeal has been filed against the said order.

3. The Motor Vehicles Act, 1939, or the Motor Vehicles Act, 1988, does not make any provision as to appeal against such order. Appeal is a creation of statute. The same cannot be filed unless there is any specific provision for the same.

4. Madhya Pradesh Motor Accidents Claims Tribunal Rules, 1959, have been made applicable from 7.4.1959. Rule 14 provides as follows:

(14) Certain provisions of Code of Civil Procedure, 1908, to apply.-Save as otherwise expressly provided in the Act or these Rules the following provisions of the First Schedule to the Code of Civil Procedure, 1908, namely, those contained in Order V, Rules 9 to 13 and 15 to 20; Order IX; Order XIII, Rules 3 to 10; Order XVI, Rules 2 to 21; Order XVII and Order XXIII, Rules 1 to 3 shall apply to proceedings before Claims Tribunal, in so far as they may be applicable thereto: Provided that-

(a) for the purpose of facilitating application of the said provisions the Claims Tribunal may construe them with such alterations not affecting the substance as may be necessary or proper to adopt them to the matter before it;

(b) the Claims Tribunal may, for sufficient reasons, proceed otherwise than in accordance with the said provisions, if it is satisfied that the interests of the parties shall not thereby be prejudiced.

From the plain reading of the above rule it is evident that Order IX of the Code of Civil Procedure has been made applicable for proceeding before the Motor Accidents Claims Tribunal. In view of that provision it shall be deemed that the claim petition has been dismissed under Order IX, Rule 3, Civil Procedure Code. No appeal has been provided against the order passed under Order IX, Rule 3, Civil Procedure Code.

5. Order IX, Rule 4, Civil Procedure Code, provides that 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 his non-appearance the court shall make an order setting aside the dismissal. It appears that no application under Order IX, Rule 4, Civil Procedure Code, for restoration of the petition has been filed in the case. Thus, in the opinion of this court, the appeal against the order of dismissal of claim petition for non-appearance of the claimant is not maintainable.

6. The alternative argument of learned counsel for the appellant was that this may be treated as a revision and the order may be set aside. Though it is true that a revision under Section 115, Civil Procedure Code, lies against the order of the Claims Tribunal [See Krishan Gopal v. Dattatrya 1971 ACT 372 (MP)], but it will have to be seen as to whether there was any material irregularity in dismissal of the claim or the court has failed to exercise jurisdiction vested in it or has wrongly exercised the jurisdiction so vested. On perusal of the record it ap