The court must exercise caution in condoning delays; a litigant's failure to pursue their case diligently, regardless of counsel's actions, does not constitute sufficient cause for delay.

ORDER :

G. S. AHLUWALIA, J.

This review petition under Order 47 Rule 1 CPC has been filed for recall of order dated 31.01.2013 passed by the coordinate bench of this Court in M.A. No. 391/2007.

2. The Hon'ble Judge who had passed the order under review has demitted his office; therefore, this Review Petition has been listed before this Court.

3. I.A. No. 3557/2017, an application for condonation of delay has been filed.

4. It is submitted by counsel for appellant that, against the same award, the claimants had filed M.A. No. 391/2007, whereas the applicant, who is the owner of the offending vehicle, had filed M.A. No. 1175/2009. M.A. No. 1175/2009 is still pending, but by order dated 31.01.2013 M.A. No. 391/2007 was finally decided, and it was observed that the findings recorded by the Claims Tribunal with regard to the liability shall remain intact. It is submitted that although the applicant had engaged counsel but he did not appear when M.A. No. 391/2007 was called; therefore, the aforesaid appeal was heard and decided without giving an opportunity of hearing to the applicant.

5. It is further submitted that once two appeals are pending against the same award, then both the appeals should have been heard analogously; therefore, the separate hearing of M.A. No. 391/2007 has caused irreparable loss.

6. Per contra, Shri S.S. Bansal, Advocate, who appears in M.A. No. 1175/2009 fairly conceded that he had already filed his vakalatnama in the said appeal on 04.01.2010, and therefore, the Insurance Company was aware that M.A. No. 1175/2009 is pending. It was fairly conceded that since the Insurance Company had engaged two different lawyers in M.A. No. 1175/2009 and M.A. No. 391/2007, therefore, he was personally not aware of pendency of M.A. No. 1175/2009, therefore, he could not bring it to the notice of the co-ordinate Bench at the time of hearing of M.A. No. 391/2007.

7. Counsel for the Insurance Company submitted that this Review Petition has been filed after an expiry of four and half years of passing of order dated 31.01.2013 in M.A. No. 391/2007. The Insurance Company was given the right of pay and recover, and accordingly, the Insurance Company filed an application for execution in the year 2014. The applicant was all the time avoiding the service of notice and with great difficulty, he could be served after four years and after the attachment order was issued, he immediately rushed to this Court by filing R.P. No. 459/2017. Thus, it is submitted that the applicant has not shown any sufficient cause for condonation of delay in filing this review petition. It is submitted that in fact, the applicant was playing with Insurance Company as well as with the claimants and was always trying to avoid service of notice of execution proceedings specifically when the address of the applicnat is same in the award, in the memo of appeal of M.A. No. 1175/2009, in the memo of appeal of M.A. No. 391/2007 as well as in the execution proceedings.

8. In reply, it is submitted by counsel for the applicant that it is the duty of the executing Court to ensure that the notices are served. If the process server was returning the notice with an endorsement that the noticee was not found at the given address, then it cannot be said that the applicant was avoiding the service of execution proceedings. It is further submitted that since the counsel for the applicant had not appeared at the time of the hearing of M.A. No. 391/2007, therefore, he had not informed the applicant with regard to the judgment passed by the coordinate Bench of this court in M.A. No. 391/2007, therefore, the delay has occurred.

9. Heard on the question of condonation of delay.

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