Harshad Doshi vs Duraiswamy

Bakthavatsalam, J.—This civil revision petition is filed under Article 227 of the Constitution of India against an order passed in E.P. No.

2822 of 1991 in MACTOP No. 310 of 1990 dated 6.8.1992 on the file of X Assistant Judge, City Civil Court, Madras.

Certain facts are necessary to decide whether his revision petition filed under Article 227 of the Constitution has to be entertained. The

respondent was a victim of a road accident at Kathipara junction, St. Thomas Mount, Madras. The hit was by the petitioner''s car and the accident

took place on 2.5.1985 and it was a case of hit and run. The respondent seems to have suffered head injury and the cycle on which he rode. On

28.9.1988, a first information report was sent to the Inspector of Police, St.Thomas Mount about the accident by the respondent. On 27.2.1989,

nearly after four years, the police registered a case in Crime No. 169 of 1989 against the petitioner herein on the directions of I.G. of Police,

Madras after protracted correspondence with the Madras Legal Aid and Advisory Board. The respondent herein filed MCOP.(SR) 1156 of

1990, before the District Judge, Chingleput to condone the delay of 1576 days. The said delay of 1576 days had been excused in I.A. No. 371 of

1990. After undergoing treatment as in-patient for two months the respondent continued the treatment as out-patient later. The petitioner herein

was called absent and set exparte and the petition was allowed by the District Judge. The respondent herein filed Crl.M.P. No. 3897 of 1990 u/s

482, Crl.P.C. for directions to the St. Thomas Mount Police Inspector to investigate and submit a report. On 26.3.1990, Arunachalam, J. passed

orders in the said petition for speedy investigation with direction to furnish all necessary details to file a claim petition. An ex parte Award was

passed for Rs. 75,000 on 15.4.1991. E. A. No. 413 of 1991 was filed by the respondent to transmit the award to the City Civil Court, Madras

under Order 21, Rule 5, C.P.C. It was ordered. On 9.10.1991, E.P. No. 2822 of 1991 was filed for attachment of the moveables of the

petitioner herein and notice was served on the petitioner on 23.10.1991. Order of attachment was passed by the City Civil Court, Madras, on

6.8.1922 and this order is impugned in this revision petition. Thereafter the petitioner filed E.A. No. 4168 of 1992 for stay of the order dated

6.8.1992 and stay for two weeks and notice ordered therein. On 28.8.1992, stay was not extended and notice as last chance as 9.9.1992 was

ordered. At this stage, the petitioner filed a petition to excuse the delay of 522 days in I.A. No. 711 of 1992 before Sub Court, Poonamallee and

to set aside the ex parte award dated 15.4.1991. On 21.9.1992, E.A. No. 4168 of 1992 was closed in the City Civil Court, Madras. On

30.9.1992, the petitioner made payment to the bailiff under protest, and as such no attachment was effected. Payment out application was made

by the respondent herein, in E.A. No. 288 of 1992 on 20.10.1992. On 18.1.1993, Sub Court, Poonamallee dismissed I.A. No. 711 of 1992,

which is filed to condone the delay to file an application and to set aside the ex parte award dated 15.4.1991. When the payment out application

was posted for orders on 83.1993, the petitioner has come up before this Court with this civil revision petition challenging the order dated

6.8.1992, the order of attachment.

Mr. S. Jagadeesan, the learned Counsel for the petitioner strenuously contended that the claim petition filed u/s 110-A of the Motor Vehicles

Act, 1988 was time barred and that since the Tribunal has no power to condone the delay of more than six months as per Section 166(3) of the

Motor. Vehicles Act, 1988 as in the present case where the claim petition was filed with a delay of 1567 days, the Award passed is contrary to

law and it is a nullity and as such the executing Court could not execute an Award which is a nullity. It is also argued that under the new Motor

Vehicles Act, 1988, the Insurance company is a necessary party before the claims Tribunal to decide the quantum of Award and that when the

provisions of the Motor Vehicles Act, 1988 were not followed when the claim petition was filed by the respondent the Executing Court could not

pass any order in the execution petition without impleading the insurance company as a party respondent. The sum and substance of the argument

of the learned Counsel for the petitioners that when condoning the delay is against the provisions of the Motor Vehicles Act, 1988 and that the

Tribunal has no jurisdiction to condone such a long delay and as such the order of the Tribunal is a nullity and the petitioner cannot enforce the

award. In other words, when the Tribunal has no jurisdiction to condone such a long delay, the Tribunal has acted on excess jurisdiction and this

Court should interfere under Article 227 of the Constitution of India Leaned counsel for the petitioner refers to the decisions in Kiran Singh and

Others Vs. Chaman Paswan and Others, and in Vasudev Dhanjibhai Modi Vs. Rajabhai Abdul Rehman and Others, , in support of his

submissions.

Mr. T.N. Manikanteswaran, the learned Counsel for the respondent states that the impugned order need not be interfered with under Article

227 of the Constitution of India and that this is a new point raised by the petitioner before this Court. It is also stated by the learned Counsel for

the respondent that the petitioner was set ex parte in the petition for condoning the delay and even when the Award was passed. According to the

learned Counsel for the respondent, this point was not at all raised at any point of time and it is taken up for the first time in this petition and this

Court under Article 227 of the Constitution should not allow the petitioner to raise the question for the first time, considering the power of this

Court under Article 227 of the Constitution of India. The learned Counsel points out that the amount is in court deposit and only when payment put

petition was taken up, the petitioner has chosen to come before this Court. The learned Counsel also points out that the petitioner kept quite all

along, that he did not file any revision against the order in I. A. No. 371 of 1990 or against the order in the execution petition and that even the

application filed to set aside the ex parte order has been dismissed by Sub Court, Poonamallee. The learned Counsel further points out that the

police has taken nearly five years to take action against the petitioner, on the basis of the first information report given by the petitioner and that

too, after obtaining orders for directions in Crl.M.P. No. 3897 of 1990. The learned Counsel points out that this itself shows the attitude of the

petitioner and that this Court, sitting under Article 227 of the Constitution should consider the merits of this case and that the power under Article

227 has to be used very sparingly. With regard to the point that insurance company has to be impleaded in the claim petition, it is pointed out, that

the petitioner herein had filed a counter-affidavit and it was rejected by the learned X Assistant Judge, City Civil Court, Madras on 6.8.1992.

According to the learned Counsel, under the guise of challenging the order dated 6.8.1992, which is impugned herein, the petitioner virtually

challenges the ex pane order passed in LA. No. 371 of 1990 dated 5.2.1990 condoning the delay for the first time. The learned Counsel further

states that since the petitioner traverses the point which was not raised in E.P. No. 2822 of 1991 and the order of the learned District Judge had

become final, the executing Court cannot go beyond the award and as such the revision filed under Article 227 need not be entertained. Learned

Counsel derives support from the decisions in Puzhakkal Edam alias Puthen Edon and Others Vs. Kunchappan, and in Gajendra Singh and

Another Vs. The Transport Appellate Tribunal, Rajasthan, Jaipur and Others, The learned Counsel points out that if the petitioner is aggrieved by

the order in E.P. No. 2822 of 1991 dated 6.8.1992, his remedy only will be u/s 115, C.P.C. and not in a petition under Article 227 of the

Constitution of India.

I have considered the arguments of the learned Counsel on either side. It is settled law that the power under Article 227 of the Constitution has

to be used very sparingly, and that too, only in appropriate cases for the purpose of keeping the Subordinate Courts and Tribunal within the

bounds of their authority and not for merely correcting their errors. The power conferred under Article 227 of the Constitution is not the appellate

power and it cannot be exercised to correct mere errors of law or facts. From the narration of facts stated above, it is very clear that this is not a fit

case to exercise the discretion under Article 227 of the Constitution of India. It is true that the Tribunal might have erred in applying the provisions

of the Motor Vehicles Act, 1988. But the petitioner herein should not be allowed to challenge the order which had become final and more so

against the petitioner who has kept away from the court and remained ex pane in all earlier proceedings. Further, I am not inclined to interfere with

the order in a petition under Article 227 of the Constitution of India, since the petitioner has taken up the fresh plea before this Court, for the first

time. Inspite of many opportunities the petitioner had kept out himself before this stage, and only when a payment out petition is filed the petitioner

seems to have woke up from his slumber and thought it fit to file a petition under Article 227 of the Constitution of India In fact, the order of

attachment has been parsed on 6.8.1992 and the amount has been deposited in Court as rightly pointed out by the learned Counsel for the

respondent. If the petitioner is aggrieved by order dated 9.10.1991 in E.P. No. 2822 of 1991, he ought to have agitated the same at the

appropriate time and resorted to appropriate remedy which is open to him in law. Having not done so, I do not propose to exercise the discretion

in favour of the petitioner herein. 6. As rightly pointed out by the learned Counsel for the respondent, the petitioner has no right to move this Court,

for the first time with a new plea, praying to exercise the discretion of this Court, in favour of him. It has been held so in Gajendra Singh and

Another Vs. The Transport Appellate Tribunal, Rajasthan, Jaipur and Others, and to the same effect is Puzhakkal Edam alias Puthen Edon and

Others Vs. Kunchappan, . The Supreme Court in Mohd. Yunus Vs. Mohd. Mustaqim and Others, , has held as follows:

...The Supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited ''to seeing that an inferior court or

Tribunal functions within the limits of its authority'' and not correct an error apparent on the face of the record, much less an error of law...

In State of ""Maharashtra v. Harish Chandra AIR 1981 S.C. 1193, it has been held that when the petitioner as owner had waived his rights to

object the order of remand by submitting to it, further proceedings in a petition under Article 227 Of the Constitution of India need not be

entertained. In view of that, I am not able to agree with the contention of the learned Counsel for the petitioner that the order passed in excusing

the delay in filing the claim petition is nullity and as such the petitioner can raise that question at any point of time. There are no merits in the civil

revision petition. Accordingly, it is dismissed.