HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition (M/S) No. 266 of 2014

National Insurance Company Limited

..…Petitioner

Versus

Jagdish and others

…Respondents

Advocate :

Mr. Lalit Belwal, Advocate for the petitioner

Mr. Devesh Ghildiyal, Advocate for respondent No. 1

Mr. Rajat Mittal, Advocate for respondent No. 3

Hon’ble Sharad Kumar Sharma, J.

The present writ petition arises out of a peculiar

situation and an order dated 26^th October 2013, whereby the Court of

Additional District Judge/Sessions Judge, Vikasnagar, Dehradun

while exercising his powers in MAC Case No. 167 of 2013, Jagdish

v. Ramnath, while deciding Issue No. 2 has held that the subsequent

Suit, instituted by the claimant-respondent No. 1 would be tenable,

would not be barred by Section 11 of the Code of Civil Procedure,

irrespective of the fact that in an earlier proceeding filed by way of

MACT No. 145 of 2007, Jagdish v. National Insurance Co. Ltd.,

which was arising out of the same accident dated 25^th May, 2007

and under the same circumstances and between the same set of

parties, which was dismissed for want of prosecution under Order 9

Rule 8 of CPC on 10^th November, 2008.

It is the case of the petitioner that respondent/claimant seeking

recall of the order dated 10^th November, 2008 has filed a restoration

application, which was numbered as Miscellaneous Case No. 89 of

2008, which too was dismissed for want of prosecution on 27^th

August, 2010.

Later on, a restoration application for restoration of order

dated 27^th August 2010 was preferred being Misc. Case No. 41 of

2011, Jagdish vs. National Insurance Co. Ltd. and others, wherein

the application filed by respondent No. 1 herein has sought to set-

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aside the order dated 27^th August, 2010, passed in MACT No. 145 of

2017, Jagdish v. National Insurance Co. Ltd., by virtue of which the

earlier restoration application being Misc. Case No. 89 of 2008 was

dismissed in default. Admittedly, the subsequent order of dismissal

of restoration application No. 41 of 2011 was an order, which was

passed on merits after hearing the parties on 29^th February, 2012.

As far as the order as passed on Misc. Case No. 41 of 2011,

Jagdish vs. National Insurance Co. Ltd. and others, is concerned,

which was rendered on 29^th February, 2012, that has not been

questioned nor challenged before any superior court, which was

affirming the dismissal of the earlier restoration application dated

27^th August, 2008. Rather to the contrary, instead of questioning the

subsequent

order

dated

29^th

February

2012,

dismissing

Miscellaneous Case No. 41 of 2011, the respondent had preferred

yet another Motor Accident Claim Petition being MACP No. 167 of

2013, Jagdish v. Ramnath, before the Court of Additional District

Judge, Vikas Nagar, Dehradun, which has been entertained by the

impugned order.

The ratio, on which the learned Motor Accident Claim

Tribunal had permitted to entertain the subsequent Motor Accident

Claim Petition being MACP No. 167 of 2013, Jagdish v. Ramnath

and others was on the basis of a reference being made to certain

judgements, which were rendered by the different High Courts in a

different set of circumstances, for example; particularly, the

reference which was made in relation to the Bhavani Travels v.

Sarabjit Kaur & Ors case, as rendered by Punjab and Haryana High

Court.

In that case, the issue which involved consideration was

pertaining to the restoration and revival of a case to be decided on

merits was considered on a premise of the wider principles that no

litigant should be made to suffer on account of the mistake of the

counsel. The said case was dismissed in default due to absence of

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the counsel to pursue the case. Later on it was held that the

subsequent petition would be maintainable, because the earlier

petition which was dismissed for want of prosecution it was not

restored and he