HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA CIVIL MISCELLANEOUS APPEAL No. 1266 OF 2008 DATED 25th NOVEMBER, 2011 BETWEEN Banavath Lachya … Appellant And V. Venkateshwarlu and anr ….Respondents. HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA CIVIL MISCELLANEOUS APPEAL No. 1266 OF 2008 JUDGMENT: This appeal is ﬁled against the order dated 19.3.2008 vide which the learned II Additional Chief Judge, City Civil Court, Hyderabad, dismissed the application ﬁled by the appellant under Order IX Rule 9 CPC in I.A.No. 5195 of 2008 in O.P.No. 734 of 2006 seeking to set aside the dismissal order dated 3.5.2007 and restore the OP to its file. The learned Counsel appearing for the appellant contended that the court below ought to have set aside the dismissal order in as much as the matter pertains to payment of compensation on account of the injuries sustained by the appellant in a motor vehicle accident and as the right of the injured person to receive the compensation has to be protected. He further submitted that the appellant is a poor, illiterate and layman and as such it could not be possible for him to procure and thereby to produce the death certiﬁcate of his cousin brother from a far of place to substantiate his absence. Heard. Perused the case file. It is true that the Motor Vehicles Act is a beneﬁcial legislation intended to provide monetary solace to dependants of the victims or injured in the road accident. It is also true that such claim petitions for payment of compensation should not be thrown out with hectic orders and the Courts should always make an endeavour to extend the beneﬁt to the claimants to a just and reasonable extent. However, perusal of the order under appeal discloses that the claim petition for payment of compensation in OP.No. 734 of 2006 was filed in March, 2006. From thereon, the Tribunal has been aﬀording suﬃcient opportunities to the claimant/appellant to lead evidence. However, the appellant did not turn up to lead evidence. Even after setting aside of the dismissal order dated 18.6.2006 passed in a petition ﬁled under Order IX Rule 9 CPC, the appellant did not come forward to lead evidence to substantiate his claim. In the aﬃdavit ﬁled in support of the petition, the appellant pleaded that he could not attend the Court due to death of his cousin brother on 3.5.2007. It is to be seen that from 18.6.2006 to 2.5.2007 nothing prevented him to attend the Court and lead evidence. No suﬃcient reason is forthcoming for not prosecuting the matter during the said period. Even in the accompanying aﬃdavit, the appellant did not mention the name of his cousin brother who was stated to have died on 3.5.2007 and when the Court asked him to ﬁle at least proof thereof to substantiate the said fact, the appellant failed to do so. From the above it is palpable that the appellant is not diligent in prosecuting the case. In as much as the appellant is not diligent in prosecuting the matter, the Tribunal rightly considered and dismissed the application ﬁled seeking to set aside the dismissal order. However, it is not out of place to mention that the power to dismiss a petition for default carries with it the power to restore the same as it is always expedient to allow the matter to be adjudicated on merits rather than dismissing the same on technicalities. This Court cannot loose sight of the fact that law of procedure is the handmaid of justice and the power of the Court can be exercised to restore a petition, which it had dismissed for default if suﬃcient cause in that behalf is shown. Having due regard to the purport and object of the beneﬁcial legislation under which the petitioner ﬁled his claim petition before the trial Court and in the interest of justice, the order dismissing the petition for default be set aside and the OP be restored to its ﬁle on payment of costs. Accordingly, the appellant is directed to pay costs of Rs.500/- payable to the Secretary, District Legal Services Authority, Hyderabad, within a period of four weeks from the date of receipt of a copy of this order, failing which this appeal stands automatically dismissed. If such payment is made, the Court below is directed to restore the OP to its file. The Civil Miscellaneous Appeal is allowed accordingly. There shall be no order as to costs. ---------------------------------- ---- JUSTICE ASHUTOSH MOHUNTA Dated 25th November, 2011. Msnro