Patel Jayantibhai Veljibhai vs Patel Kanjibhai Virchandbhai

Gita Gopi, J

[1] Advocate Mr. Bhalodi for the applicant submitted that MACP no.1726/2012 came to be dismissed for default on 10.7.2018 by MACT (Aux), Mehsana at Visnagar observing non-appearance of the applicant since 16.12.2015 and thereafter, on 9.1.2018 and 1.5.2018 matter stand adjourned. Mr. Bhalodi submitted that Restoration Application being Misc. MACA no.72/2021 was moved which was also not entertained observing the negligent and lethargic approach on the part of the applicant as well as the advocate on record drawing an adverse inference that the applicant is not interested either to serve the process to the opponents or to proceed ahead with the matter on merits and the Restoration Application stood dismissed for default of applicant for want of service of process to the opponents as well as for the want of prosecution.

[2] Mr. Bhalodi referring to the judgment in the case of Bharatbhai Narsinghbhai Chaudhary & Ors. v. Malek Rafik Malek Himmatbhai, reported in 2011 (2) GLR 1324, submits that no claim petition can be dismissed for default and the claim petition has to be decided on merits and even if when the Restoration Application is moved, the Tribunal is required to restore the same and decide on merits since the application for restoration itself would prove that the claimant is interested in proceeding with the matter on merits.

[3] It is necessary to reproduce relevant part of the decision in the case of Bharatbhai Narsinghbhai Chaudhary (supra), which reads as under:-

“A District Judge, who functions as a Claims Tribunal, is not only within the administrative control of the High Court, but also subordinate to it under Section 115 of the Code. A Claims Tribunal is a ‘Court’ although with limited jurisdiction and not a mere ‘Tribunal’. The powers of appeal given to the High Court under the Act against the decision of the Tribunal constituted under the Act, will definitely lead to conclusion that the said Tribunal is subordinate to the High Court and the nomenclature given to the Motor Vehicles Tribunal that, it is a Tribunal, will not take it out of the purview of the Civil Court. (Para 5)

Under Rule 3, therefore, even if, neither party appears when the suit is called for hearing, it is not compulsory for the Court to dismiss the suit. The Court may adjourn the suit. In the event of dismissal of the suit, it is open to the plaintiff to apply for restoration of the suit and the Court may set aside the order of dismissal and restore the suit. An order dismissing a suit for default of appearance of parties is not a “decree” under Sec. 2(2), and hence, is not appealable. An order of dismissal of a suit based on erroneous application of Rule 3 can be said to be a “case decided” within the meaning of Sec. 115 of the Code. Hence, where the Court has acted with illegality or with material irregularity in the exercise of jurisdiction, a revision would like against such an order. (Para 5.7)

The provisions of the Code are applicable to govern the procedure in a Motor Accident Claim case as provided under Rule 229 of the Gujarat Motor Vehicles Rules, 1989. There is no separate procedural law, made applicable to conduct the Motor Accident Claim petitions. Therefore, application for restoration, made under Order 9, Rule 4, in the instant case, is absolute, legal and sustainable, and therefore, the revision, arisen out of such order, passed below such application, is also undoubtedly maintainable. (Para 5.11)

On perusal of the application and other relevant papers, it appears that the restoration application was filed by the applicants on 22 nd November, 2001 and another restoration application is filed on 28 th January, 2004, under Order 9, Rule 4 of the Code, wherein, the applicants have described the reasons and tried to justify their case for restoration of the application. On perusal of the papers, it appears that the applicants are poor persons and coming from the lower strata of the society as they belong to Tribal community. Therefore, instead of entering into the technicalities and with a view to do the substantial justice, the Court below was required to adopt lenient view. (Para 6).”

[4] In view of the proposition of law laid down in the above judgment, the order dated 2.8.2022 passed by MACT (Aux), Mehsana at Visnagar passed in Misc. MACA no.72/2021 as well as the order dated 10.7.2018 passed by the MACT (Aux), Mehsana at Visnagar in MACP no.1726/2012 are quashed and set aside. The main matter is ordered to be restored on the file of the concerned Tribunal with a direction that the matter be disposed of within a period of six months after affording an opportunity to adduce the evidence to all the parties on record. All the parties to cooperate with the Tribunal in concluding the matter within the stipulated time prescribed by this Court. Further, the issue of grant of interest for the delayed period is kept open for all the parties to agitate during the course of arguments.

[5] Accordingly, the present petition stands disposed of.