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Judgment
Sudhir Agarwal, J.—Heard Sri Alok Kumar Yadav, learned Counsel for the Petitioner and perused the record.
The Petitioner''s application under Order IX Rule 13 CPC has been rejected by means of impugned order dated 10.05.2011 passed by Additional District Judge, Court No. 3, Agra in Misc. Case No. 62 of 2010 arising out of Motor Accident Claim No. 466 of 2003 on the ground that it is admitted by Petitioner that he has received summons but for his own fault did not appear and, therefore, there was no reason to recall the award passed against ex parte.
Learned Counsel for the Petitioner submits that even if Petitioner had not appeared, the court below was bound to rectify the award which has proceeded in wrong way and for this purpose placed reliance on Apex Court''s decision in Hotel Balaji and others, Vs. State of Andhra Pradesh and others, etc. etc., and State of Orissa and Another Vs. Mamata Mohanty,
In my view the reliance placed by learned Counsel for the Petitioner is misconceived.
Hotel Balaji (supra) was not a case where the Apex Court considered the scope of application under Order IX Rule 13 CPC but that was a reference made by two Judges Bench for reconsideration of earlier decision of Apex Court and in that context the majority judgment observed that an error should not be allowed to perpetuate but it is the duty of the Court to rectify error, if any, committed in the judgment. The said decision has no application in the present case inasmuch as if there was an error in the judgment Petitioner has the remedy of filing appeal or he could have filed review application but in the garb of an application under Order IX Rule 13, he cannot be allowed to seek modification or setting aside of award on merits except other than the manner and grounds provided in Order IX Rule 13.
The decision in State of Orissa and Anr. v. Mamata Mohanty (supra) also, in my view, does not help the Petitioner on this aspect.
In view of above the writ petition lacks merit. Dismissed.