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Hafiz Bashir Ahmad Vs. Smt. Rani and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberFirst Appeal from Order No. 105 of 1978
Judge
Reported inI(1985)ACC334; [1986]60CompCas42(All)
ActsCode of Civil Procedure (CPC) , 1908 - Sections 151 - Order 9, Rule 13; Motor Vehicles Act, 1939
AppellantHafiz Bashir Ahmad
RespondentSmt. Rani and ors.
Appellant AdvocateV.S. Singh, Adv.
Respondent AdvocateA.K. Banerji, Adv.
DispositionAppeals dismissed
Excerpt:
.....the claim petition filed by the said respondents but he intentionally evaded service of the notices sent to him both by ordinary process as well as by registered post. it appears that the appellant failed to comply with the conditions imposed by the court below as a result of which, his application stood dismissed in terms of the order passed by the court below. the appeal is liable to fail on a narrower ground. the record of the case reveals that numerous attempts were made to serve the appellant both by ordinary process as well as by registered post but on each occasion the appellant evaded service thereof. the tribunal was hence clearly in error in allowing the appellant's application under section 151, cpc......of the award in favour of the said respondents. the court below has, however, set aside the ex parte award on certain conditions in the purported exercise of his powers under section 151, cpc, while allowing the application under section 151, cpc, the court below has said that if the appellant does not comply with the conditions imposed by it, the application of the appellant shall stand automatically dismissed. it appears that the appellant failed to comply with the conditions imposed by the court below as a result of which, his application stood dismissed in terms of the order passed by the court below.2. the appellant is aggrieved by that part of the order passed by the court below by which it required the appellant to deposit rs. 25,000 in cash and to furnish security for the.....
Judgment:

A.N. Verma, J.

1. This appeal is directed against an order passed by the learned II Additional District Judge, Jhansi, dismissing an application filed by the appellant for setting aside an award dated September 11,1975, said to have been passed ex parte in Accidents Claim Miscellaneous Case No. 34 of 1974 filed by respondents Nos. 1 to 3. The court below has recorded a finding that the appellant had been duly served with the notices issued on the claim petition filed by the said respondents but he intentionally evaded service of the notices sent to him both by ordinary process as well as by registered post. It has observed that there was no justification for the absence of the appellant in the proceedings which led to the passing of the award in favour of the said respondents. The court below has, however, set aside the ex parte award on certain conditions in the purported exercise of his powers under Section 151, CPC, While allowing the application under Section 151, CPC, the court below has said that if the appellant does not comply with the conditions imposed by it, the application of the appellant shall stand automatically dismissed. It appears that the appellant failed to comply with the conditions imposed by the court below as a result of which, his application stood dismissed in terms of the order passed by the court below.

2. The appellant is aggrieved by that part of the order passed by the court below by which it required the appellant to deposit Rs. 25,000 in cash and to furnish security for the remaining amount of Rs. 25,000 within 20 days from the date of the order.

3. The contention of the learned counsel for the appellant is that the court below was not justified in imposing such onerous conditions while setting aside the ex parte decree.

4. Having heard the learned counsel for the appellant, I find no merit in this appeal. The appeal is liable to fail on a narrower ground. The record of the case reveals that numerous attempts were made to serve the appellant both by ordinary process as well as by registered post but on each occasion the appellant evaded service thereof. The court below was, therefore, right in concluding that there was no justification for the absence of the appellant. Having found that there was no justification for the absence of the appellant on the date on which the claim petition was allowed, the court below fell into a serious error of law in allowing the appellant's application under Section 151, CPC. Order 9, CPC, has been made applicable to the trial of claim petitions under the Motor Vehicles Act. If the court below found that no case had been made out for setting aside the ex parte award under Order 9, CPC, it had no jurisdiction to fall back on Section 151, CPC. The inherent powers which have been vested in the court or tribunal under any enactment, cannot be exercised in derogation of the specific procedure laid down for setting aside an ex parte decree or order or for restoration of proceedings dismissed in default. If no ground existed for setting aside the ex parte award under Order 9, Rule 13,CPC, the Tribunal could nut legally invoke its inherent powers under Section 151, CPC, for the same purpose, namely, setting aside the ex parte award. The Tribunal was hence clearly in error in allowing the appellant's application under Section 151, CPC. That being so, it is unnecessary to go into the question whether the conditions imposed by the Tribunal while setting aside the ex parte award were valid or justified.

5. In this view, the appeal fails and is dismissed but as the contesting respondents have not put in appearance, I make no order as to costs.


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