Kunjulal vs Smt. Hamida Begum and Others

N.K. Agarwal, J.

The instant appeal is directed against the award dated 11-12-2003 passed in Claim Case No. 67/2002 by Second Additional Motor Accident Claims Tribunal, Ambikapur (Surguja) (for short ''the Tribunal'') whereby and whereunder the claim petition of the claimant has been dismissed.

Facts briefly stated are as under:

The appellant/claimant preferred an application u/s 166 of the Motor Vehicles Act, 1988 (for short ''the Act'') against the respondents claiming Rs. 1,70,000/- as compensation for the injuries sustained by him in the accident occurred on 16-06-1996.

Vide order dated 02-11-2003, last opportunity to produce the evidence was granted by the learned Tribunal to the claimant and the case was fixed for evidence on 04-12-2003.

On 04-12-2003, the claimant was absent. Respondents No. 1 & 3 appeared through their counsel. Learned Tribunal therefore, closed the opportunity of evidence of the claimant and fixed the case for final arguments without there being any evidence of any party of the record, on 10-12-2003. On that date as per the order-sheet, learned Tribunal heard arguments and passed the award dismissed the claim petition for want of evidence.

The question for decision making before this Court is that whether in the facts and circumstances of the case, learned Tribunal was justified in passing the impugned award, dismissing the claimant''s claim petition, for want of evidence.

Under Order 17 Rule 2 C.P.C. if on the day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may dispose of the suit in one of the modes directed in that behalf by Order IX of C.P.C. or make such other order as it thinks fit. As per explanation appended to this provision where evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion proceed with the case as if such party were present. Order 17 Rule 3 contemplates where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may notwithstanding such liability, -

(a) if the parties are present, proceed to decide the suit forthwith; or

(b) if the parties are, or any of them is absent, proceed under Rule 2.

Order IX Rule 8 C.P.C. provides for dismissal of suit if defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof in which case, the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder. As per Order IX Rule 9 C.P.C. where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But 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 when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit and shall appoint a day for proceeding with the suit.

Admittedly, in the instant case, on the date of adjourned date of hearing i.e. 04-12-2003, the claimant and his counsel were absent. Respondents were present, evidence of the parties was yet to begin. In this state of affair, the dismissal of the suit could be under Order 17 Rule 2 of C.P.C. and passing of the award was certainly without jurisdiction. Even Order 17 Rule 3 C.P.C. itself provides that if the parties or any of them absent, the Court shall proceed to decide the suit under Order 17 Rule 2 C.P.C.

The Supreme Court in case of Mohandas and others v. Ghisia Bai and others; reported in AIR 2002 SC 2436 has observed in para 3 of its judgment as under:

In the present case what we find is neither the plaintiff-appellant nor his witnesses were present on 7th May, 1994. Therefore, the case has to be dismissed under Order XVII, Rule 2. Even Rule 3 itself provides that if the parties or any of them absent, the Court shall proceed to decide the suit under Order XVII Rule 2. In view of the said legal position, we are of the view that the view taken by the Court below was erroneous and deservers to be set aside. We, therefore, set aside the judgment under appeal and sent the case back to the trial Court to decide the matter in accordance with law.

In view of the above legal position, in the considered opinion of this Court, the view taken by learned by Tribunal was erroneous and the award deserves to be set aside.

For the foregoing, the appeal is allowed. The award passed by learned Tribunal is set aside and the matter is remitted back to the Tribunal to decide the matter in accordance with law. No order asto costs.