1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B. Civil Writ Petition No. 9190/2008 {Suresh Kumar Versus Chhotey Lal through LRs and Others} Date of Order :: 5th September, 2008 PRESENT HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Mr. Virendra Agarwal for the petitioner BY THE COURT: Heard learned counsel for the petitioner. 2. This writ petition on behalf of defendant-petitioner is directed against the impugned order dated 4th July, 2008 passed by the Motor Accident Claims Tribunal (Additional District & Session Judge No.1, Deeg), whereby his application under Order 9 Rule 13 CPC dated 29th April, 2006 to set-aside the ex-parte judgment dated 3rd February, 1999 has been rejected. 3. The undisputed facts of the case are that defendant-petitioner entered his appearance in the Tribunal through his counsel after service of notice upon him and due to his non appearance, an ex-parte order was passed on 11th July, 1995. Thereafter the case was fixed 2 from time to time at least for 30 dates and thereafter the judgment was passed on 3rd February, 1999. The petitioner moved an application under Order 9 Rule 13 CPC on 29th April, 2006 on the ground that he came to know about passing of the ex-parte award on 30th March, 2006, therefore, the application is within time from the date of knowledge. 4. The learned counsel for the petitioner contended that defendant was served with a notice, but he engaged one advocate Shri Parashar to defend the case on his behalf. Thereafter, he did not hear anything from the counsel and came to know about passing of the ex-parte decree / award only on 30th March, 2006 and immediately thereafter he filed an application within 30 days from the date of knowledge i.e. on 29th April, 2006, therefore, the Tribunal committed an illegality in rejecting his application, hence the order passed by the Tribunal is liable to be set- aside. 5. I have considered the submissions of learned counsel for the petitioner in the light of reasons assigned by the Tribunal for rejecting his application. The claim petition was filed on 27th October, 1994 and soon 3 thereafter the notice of claim petition was served upon the defendant-petitioner on 11th July, 1995. Neither defendant-petitioner nor his counsel appeared, therefore, the ex-parte order was passed against him. The claim petition proceeded ex-parte. The case was fixed from time time to time on 30 dates and thereafter the award was passed on 3rd February, 1999. The Tribunal has observed that award was passed nine years ago, but he has not shown any good cause for his non appearance on 11th July, 1995 or subsequent thereto. He has also not given any date as to when his counsel Shri Parashar died and when he came to know about his death. The petitioner is unable to show any sufficient cause for not filing the application within thirty days from the date of decree i.e. award. As per Article 123 of the Limitation Act, 1963, the limitation of thirty days has been prescribed for filing an application to set-aside the decree passed ex- parte from the date of decree or where the summon or notice was not duly served, when the applicant had knowledge of the decree. Article 123 is reproduced as under: “123. To set aside a Thirty days The date of the decree passed decree or where ex parte to re-hear the summons or an appeal decreed notice was not or heard ex parte duly served, when 4 the applicant had knowledge of the decree. 6. So far as the facts of the case are concerned, the learned counsel for the petitioner has not disputed that notice of claim petition was served upon him and he entered his appearance through advocate. In these circumstances, the period of thirty days from the date of knowledge is not applicable in the present case, but period of thirty days from the date of decree is applicable. The ex- parte award was passed on 3rd February, 1999 and present application was filed on 29th April, 2006 i.e. after more than seven years and two months, whereas period of limitation is only thirty days. In these circumstances, I find that learned Tribunal has not committed any illegality in rejecting the application on the ground of delay as well as merits also. I do not find any illegality, perversity or jurisdictional error in the impugned order so as to interfere with the same under Article 227 of the Constitution. 7. The Hon'ble Supreme Court in Babhutmal Raichand Oswal Versus Laxmibai R. Tarte and another {AIR 1975 Supreme Court 1297} held that the High Court cannot in guise of exercising 5 its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred a right of appeal and made the decision of the subordinate court or tribunal final on facts. The High Court cannot, while exercising jurisdiction under Article 227, interfere with findings of fact recorded by the subordinate court or tribunal. It's function is limited to seeing that the subordinate court or tribunal functions within the limits of its authority. It cannot correct mere errors of fact by examining the evidence and re-appreciating it. 8. The Hon'ble Supreme Court in Mohd. Yunus Versus Mohd. Mustaqim {AIR 1984 Supreme Court 38} held that in exercising the supervisory power under Article 227, the High Court does not act as an appellate court or Tribunal. 9. In view of above, I find that there is no merit in this writ petition and the same is, accordingly, dismissed in limine. (NARENDRA KUMAR JAIN),J. DK