M/s Hindustan Auto Agency vs Tuntun Prasad

Heard learned counsel for the appellant.

The instant appeal has been preferred by appellant- M/s Hindustan Auto Agency against the judgment dated 24.04.2017 passed by learned District

Judge 1st, Bokaro, in Misc. Case No.1/3 of 2011 filed under Order IX Rule 13 C.P.C. for recalling of the ex-parte judgment dated 12.08.2008 and

award dated 18.11.2008 passed by learned Additional District Judge, Fast Track Court 1st, Bokaro, in Title (M.V.) Case No.50 of 2007.

Learned counsel for the appellant has submitted that application under Order IX Rule 13 C.P.C. has been rejected by the court below without

affording any opportunity to contest the case even on cost.

Heard learned counsel for the appellant and perused the impugned judgment. It appears that the respondent- Tuntun Prasad has filed claim application

vide Title (M.V.) Case No.50 of 2007 against the appellant. Notice was issued upon the appellant. The service report dated 27.01.2008 shows that on

27.01.2008 at around 10.00 a.m., the process server went to the place of occurrence at Bypass Road, Chas and found the Manager in the office of

the appellant, who neither agreed to put his signature nor received notice. Thereafter in presence of the witnesses, the process server hanged the copy

of notice on the gate of the house and returned the report. The report was considered to be validly served against the defendant who is the appellant

before this Court. The ex-parte hearing was proceeded on 07.03.2008. Thereafter the matter was finally heard and judgment was passed on

12.11.2008 and decree was signed on 18.11.2008, directing the defendant-appellant to indemnify the award of Rs.1,49,500/- in favour of the claimant

of the deceased- Savitri Devi.

The Misc. case was filed under Order IX Rule 13 in the year 2011 for setting aside the ex-parte judgment on the ground that the appellant was ill and

in support of that, two medical prescriptions issued by Dr. H. K. Mishra dated 26.07.2010 and 05.01.2011 along with one fitness certificate brought on

record, dated 03.03.2011, which have been marked as Exhibits-1, 1/A and 1/B respectively. As per the certificate, it appears that Gopal Lodha was

under treatment from 26.07.2010 due to Hyper-tension, Diabetes and other diseases. The learned Tribunal while considering the application under

Order IX Rule 13 CPC has taken note of the fact that Doctor who issued such certificates has not been examined by the appellant nor the medical

prescription and the fitness certificate clearly shows specific disease, as such, the Tribunal has not put reliance upon the same. The fitness certificate

and the prescriptions are not sufficient to prove inability of the appellant to appoint any advocate.

In the Misc. Case, the process server, Basudev Singh, a retired employee of Civil Court, Bokaro was examined as O.P. Witness No.1. This witness

has identified the service report in Title (M.V.) Suit No.50 of 2007 which was marked as Exhibit-A and A/1 on his identification. The witness has

further stated that the Manager, Abhijit Kumar was present in the Agency who refused to receive the same. The witness has then pasted the notice in

front of the door of the agency. None of the person present in the Agency has put signature due to fear of their employer. This witness has also stated

that driver of Hero Puch bearing Registration No.BR 20D 2915 is also an employee of the agency and also working as mechanic there, put his

signature on his notice and received the same. The witness has further stated that he served the notice as per the procedure. During cross-

examination, the process server has stated that Jhantu Kumar Singh was an employee of the agency who received his notice and put his signature. He

contacted the Manager of the Agency who refused to receive the notice of the proprietor. The court below has also perused the case record of Title

(M.V.) Case No.50 of 2007. It appears that notice through Registered Post was sent to the appellant and his driver, Jhantu Kumar Singh through

process server and also through registered Post vide No.ED876432351 IM â€" ED 876432365 1 IN on 22.06.2007. The notice issued through Speed

Post was not returned to the Court. Process server, Basudev Singh of the Civil Court has been examined as Witness No.1 on behalf of the Opposite

party in the present application. Under the aforesaid circumstances, the learned court below has not recalled the judgment dated 12.08.2008 and the

award dated 18.11.2008 in Title (M.V.) Case No.50 of 2007.

Learned counsel for the appellant during argument has also failed to satisfy the query made by this Court that how the appellant could know about the

judgment dated 12.11.2008 and decree dated 18.11.2008 so as to file an application under Order 9 read with Rule 13 CPC.

Under the aforesaid circumstances, this Court is also not inclined to exercise its power under appellate jurisdiction when the learned trial court being

the original court has not exercised the jurisdiction under Order 9 Rule 13 CPC. The defendant-appellant (M/s Hindustan Auto Agency) runs an Auto

Agency and was doing all other business except to contest the case depriving a poor claimant from obtaining compensation whose Hero Puch vehicle

bearing Registration No.BR 20D 2915 standing in the name of the appellant- M/s Hindustan Auto Agency causing death of deceased- Saviitri Devi.

Thus the learned Tribunal has proceeded ex-parte and awarded Rs.1,49,500/- in favour of the claimant.

Accordingly, the instant appeal stands dismissed.

However, the Executing Court is directed to execute the award by taking all recourse available under the law against the appellant- M/s Hindustan

Auto Agency.