AI Structured Summary
Not yet generated for this judgment
Judgment
R.S. Ramanathan, J.—The respondent in M.C.O.P.No.734 of 2006 on the file of the II Judge, Small Causes Court (Motor Accidents
Claims Tribunal), Chennai is the revision petitioner. The respondents in C.R.P.(NPD) No.4342 of 2001 who are the claimants in
M.C.O.P.No.734 of 2006 are the appellants in C.M.A.No.3232 of 2009.
The revision petitioner filed the above revision challenging the order of the Tribunal dismissing their application filed in M.P.No.5252 of 2009 to
set aside the ex parte order passed in M.C.O.P.No.734 of 2006. The claimants filed C.M.A.No.3232 of 2009 for enhancement of compensation.
It is submitted by the learned counsel for the revision petitioner that M.C.O.P.No.734 of 2006 was posted on 22.7.2009 and the officials of the
revision petitioner wrongly noted the date as 22.9.2009 and therefore, they did not appear on 22.7.2009 and due to their absence, they were set
ex parte and ex parte decree was passed on 29.7.2009 and immediately on coming to know of the same, they filed M.P.No.5252 of 2009 to set
aside the ex parte decree within the period of limitation. He further submitted that the Tribunal, without appreciating the merits of the case,
dismissed the application holding that the claimants filed appeal before this court in C.M.A.No.3232 of 2009 and therefore, the petition is not
maintainable. He, therefore, submitted that the order of the Tribunal in dismissing the application on the ground of pendency of appeal filed by the
claimants in C.M.A.No.3232 of 2009 is not proper and having regard to the reason stated in the affidavit, the Tribunal ought to have set aside the
ex parte decree.
On the other hand, the learned counsel for the appellants in C.M.A.No.3232 of 2009 submitted that the Tribunal passed the judgment on merits
and it cannot be considered as ex parte judgment and if at all, the revision petitioners are aggrieved, they can file only an appeal and the application
filed to set aside the ex parte decree is not maintainable. He further submitted that even in the year 2006, the revision petitioner was set ex parte
and on the assurance given by the revision petitioner to proceed with the trial, the ex parte decree was set aside and when the case was listed for
trial after examination of the claimants'' witness, the revision petitioner did not come forward to cross-examine and therefore, they were set ex
parte. He therefore submitted that the judgment passed in M.C.O.P.No.734 of 2006 cannot be construed as ex parte decree and it is a decree on
merits and after examination of P.Ws.1 and 2 and on the basis of the documents, the Tribunal passed the order and therefore, the revision is not
maintainable.
It is seen from the judgment passed in M.C.O.P.No.734 of 2006 that the revision petitioner was set ex parte and on the basis of the evidence of
P.Ws.1 and 2 and the documents produced by them, the Tribunal awarded compensation on merits. According to me, when the respondent
remained absent and set ex parte, the court should not have passed an order on merits and ought to have decreed the suit ex parte. Therefore, the
order passed in M.C.O.P.No.734 of 2006 can only be construed as an ex parte decree even though the learned Judge decided the case on
merits. Hence, the application filed under Order IX Rule 13 to set aside the ex parte decree is maintainable.
Further, the Tribunal, while dismissing the application, held that the claimants have filed the appeal for enhancement in C.M.A.No.3232 of
2009. When an application is filed to set aside the ex parte decree, a duty is cast upon the court to consider the reason stated in the affidavit for
setting aside the ex parte decree and the court should not have dismissed the application on the ground that the other side has challenged the order
for enhancement before the High Court.
It is seen from the affidavit filed alongwith the petition that the revision petitioner wrongly noted the date of adjournment and therefore, they were
not able to appear on 22.7.2009 and according to me, the reason stated by the revision petitioner appears to be genuine and therefore, the court
below erred in dismissing the application to set aside the ex parte decree dated 29.7.2009. Hence, the application in M.P.No.5252 of 2009 is
allowed and the ex parte decree passed in M.C.O.P.No.734 of 2006 is set aside.
As the appeal in C.M.A.No.3232 of 2009 is filed against the judgment passed in M.C.O.P.No.734 of 2006 for enhancement and as the said
judgment is set aside in the revision filed by the revision petitioner, the above civil miscellaneous appeal is also liable to be dismissed and it is
dismissed.
Admittedly, the deceased was aged 17 years and was studying B.Com. The case was pending before the Tribunal for the past three years and
the respondents in the revision also got the order in their favour. Considering all these things, the revision is allowed on condition of deposit of
Rs.2,00,000/= by the revision petitioner before the Tribunal within a period of eight weeks from the date of receipt of copy of this order.
In the event of the revision petitioner''s failure to deposit the said amount within the period stipulated, the decree passed in M.C.O.P.No.734
of 2006 shall become operative and it is open to the respondents in the revision and the appellants in the appeal to execute the decree. In that
event, the appeal in C.M.A.No.3232 of 2009 will also be taken on file. The Tribunal is directed to dispose of M.C.O.P.No.734 of 2006 within a
period of three months from the date of receipt of copy of this order. There is no order as to costs in the civil revision petition as well as in the
appeal. The connected miscellaneous petition is closed.