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Afzal Ahmad v. Amzadi Begum And Others - WRIT - C No. 24021 of 2006 [2007] RD-AH 7452 (24 April 2007)


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Court No.35

Civil Misc. Writ Petition No. 24021 of 2006

Afzal Ahmad


        Smt. Amzadi Begum & others

Hon.R.P.Misra, J.

Hon.Shishir Kumar, J.

The present writ petition has been filed for quashing the orders dated 18.11.2003 and 11.1.2005 in M.A.C. No.16/02 and order dated 9.3.2006 in Miscellaneous Case no.79 of 2005.

The facts arising out of the present writ petition are that the opposite party No.1 filed a Claim Petition before the District Judge, Rampur on 7.1.2002 against the petitioner and opposite parties Nos. 4 to 7  stating therein that on 24.8.2001 at about 5.00 p.m. her husband died in an accident due to negligent driving of the driver of the Truck No.UGP 4508.  Petitioner and the opposite party Nos.4 to 6 are the owners of the truck and same was insured  by opposite party No.7.  After receipt of the notice the petitioner as well as the opposite parties Nos. 4 to 6 filed their written statement denying the allegation made in the claim petition.  Further it has been stated in their objection that in case the accident is proved there will be no liability of the truck owner as the truck was insured by the  respondent No.7.  It has further been  stated that petitioner and opposite parties appointed the petitioner as pairokar for the purposes of doing pairvi.  The date was fixed on 18.11.2003 but due to the illness of the petitioner, as he was having high fever and cough and later-on doctor declared him tuberculosis and suggested him to take rest.  The Court had passed an order to proceed ex-parte and 4.1.2005 was fixed  for arguments but the petitioner could not be present due to his illness.  In the absence of arguments of the petitioner on 4.1.2005, the court had fixed a date 11.1.2005 for judgement and on that date, claim petition was allowed and awarded Rs.3,24,000/- as compensation which was to be recovered from the owner of the vehicle.  When the petitioner recovered from illness, on the basis of telephonic talk to his counsel on 10.3.2005, he came to know regarding the ex-parte order.  After obtaining the certified copy of the order, moved a recall application with an application for condonation of delay on 7.4.2005 for recalling the orders dated 18.11.2005 and 11.1.2005.

An objection was filed by the Insurance Company against the  recall application and the claimants have also filed their objection.  The Court below has rejected the said  application without considering the fact that the petitioner was ill and he was not in a position to attend the court and the liability is upon the Insurance Company, therefore, no liability can be fixed upon petitioner.  The Claims Tribunal has also not considered the medical certificates submitted by the petitioner.  

In such situation, the learned counsel for the petitioner submitted that order dated 9.3.2006 and order of ex-parte decree may be set aside and the petitioner be afforded an opportunity to be heard.

We have heard learned counsel for the parties and have perused the record.

From the record it is clear that a written statement was filed on behalf of the petitioner and they were aware that 18.11.2003  was fixed and subsequently an order proceeding ex-parte was passed and finally the judgement was delivered on 11.1.2005.  There is nothing on record to verify the fact that on the basis of the relevant document to show that after 18.11.2003 till the judgement was delivered on 11.1.2005 what steps have been taken by the petitioner to know regarding progress of the case.  In the application filed on behalf of the petitioner, only this fact has been stated that he was suffering from Tuberculosis and he was under the treatment of one Dr.S.C.Gupta.  There is nothing on record  to show that from 2003 till the date of judgement, the petitioner was not in a position even to contact the counsel  who was conducting the case before the Claims Tribunal.  A finding has been recorded while considering  setting aside the ex-parte order  that no document has been  filed to this effect that the petitioner was the pairokar of the owners of the truck.  A finding has also  been recorded that from the perusal of the document submitted for treatment it is clear that the petitioner was being treated by different doctor and he was keeping on changing the hospital and doctors.  From time to time the petitioner was changing the doctor.  It was also to be noted that if the contention raised on behalf of the petitioner is treated to be correct that he was suffering from Tubercolosis  but it cannot be inferred that he was having such ailment that he was not able to contract his counsel even regarding progress of the case.

It clearly goes to show the conduct of the petitioner.  As regards, the contention raised on behalf of the petitioner that the court should not take a very hiper-technical view while considering the application under Section 5 for the purposes of condoning the delay.  There is no dispute to this effect but while approaching the court for the purposes of condoning the delay or  for setting aside the ex-parte order a person has to approach the Court with cogent reason explaining in the affidavit day to day delay with supporting document. If it has not been done, applicant is not entitled for any relief and the court has discretion to dismiss the application  if court founds that reason stated in the application is not satisfactory.

In the present case also admittedly, the petitioner was having knowledge as he has already filed a written statement and for a period of two years  petitioner has not taken care to have the knowledge of the proceeding.  A finding has also been  recorded by the Tribunal that there was a breach of condition of insurance policy, as such, the liability is of the owner of the vehicle.

In view of the aforesaid fact, we find no illegality in the orders passed by the respondents.  The writ petition is devoid of merits and is hereby dismissed.

There shall be no order as to costs.          




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