1 wp6530.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.6530 OF 2010 Mithun Earth Movers, Plot No.8, Pandharpur, Tq. & Dist. Aurangabad through Shri. Chandrakant Nalawade, Age: 53, Occ: Business, R/o. Plot No.25, Bhanudas Nagar, Jawahar Colony, Behind Akashwani, Aurangabad 431 005. ...PETITIONER VERSUS Smt. Sushma Devendrakumar Agarwal, Age: 48 years, Occ: Household, R/o. H.No. 15-9-12, Mukhtiyar Gunj, Hyderabad-12 (A.P.) & Ors. ...RESPONDENTS ... Mr. D.R. Shelke, Advocate for petitioner. Mr. A.S. Bajaj, Advocate for respondent Nos.1 & 2. Mr. R.F. Totla, Advocate for respondent No.4. ... CORAM: S.S. SHINDE, J. DATE : 14TH JULY, 2011 PER COURT : This Writ Petition is filed challenging the order dated 30-04-2010 passed below Exhibit-1 in MARJI No.314 of 2004 by the District Judge-5 Aurangabad. By the impugned order, the MARJI No. 2 wp6530.10 314 of 2004 was allowed directing the applicant to deposit the costs of Rs.2000/- (Rs. Two Thousand only) in the Court within 15 days from the date of passing of the order. M.A.C.P. No. 385 of 2001 which was dismissed in default was also ordered to be restored to its original stage. 2. Learned Counsel appearing for the petitioner submits that, provisions of Order 17 Rule 2 of the Code of Civil Procedure are very much applicable in the present case. The date on which the Motor Accident Claims Petition was fixed for recording of evidence, original petitioners did not appear and as a result, the Tribunal dismissed the said petition for non prosecution under Order 17 Rule 2 of C.P.C. Therefore, if respondent Nos. 1 and 2 are aggrieved by the said order, appeal is provided and application for restoration of the said petition was not permissible under Law. It is further submitted that provisions of Order 17 of the C.P.C. are applicable when the matter is fixed for recording 3 wp6530.10 of evidence. The provision of Order 9 Rule 13 of the C.P.C. has no application in the instant case. Learned Counsel further submitted that the provisions of Order 9 Rule 13 of the C.P.C. are only applicable in case, exparte decree is passed and then only this provision can be invoked. Learned Counsel for the petitioner further invited my attention to the pleadings and grounds taken in the petition and submitted that this writ petition deserves consideration. He further submits that the effect of impugned order would be that because of the claimants' negligence in not prosecuting the petition filed by them and subsequently filing application for restoration of petition after six years, the ultimate sufferer would be the petitioner as the petitioner will have to pay the interest for those six years for the fault of respondent Nos. 1 and 2. 3. Learned Counsel appearing for respondent Nos. 1 and 2 submits that the provisions of Order 9 Rule 8 and 9 of the C.P.C. are very much 4 wp6530.10 applicable in the instant case. He fairly concedes that the provisions of Order 9 Rule 13 of the C.P.C. are mentioned in the impugned order. However, those provisions have no application in the instant case. He further submitted that merely because the Tribunal has referred to said provision, the entire impugned order may not be upset. Therefore, he submits that the petition may be dismissed. 4. Learned Counsel for respondent No. 4 herein adopts the arguments of the Counsel for the petitioner and further submits that, because of the fault of respondent Nos. 1 and 2 - original claimants to file application belatedly after six years for restoration of the petition would affect on the Insurance Company - respondent No.4 for no fault. Ultimately, if the petition is allowed, Insurance Company will have to pay interest for six years. Therefore, this Court may entertain this writ petition. 5 wp6530.10 5. I have given due consideration to the submission of the Counsel for the respective parties. In my opinion, the provisions of Order 9 Rule 8 and 9 of the C.P.C. are very much applicable in the present case. It is true that, learned Tribunal has placed reliance on Order 9 Rule 13 of the Code of the C.P.C. However, in the facts of this case, such reliance is misplaced. Even if argument of the Counsel for the petitioner is taken into consideration that the provisions of Order 17 Rule 2 of the C.P.C. are attracted, in that case also Rule 2 of Order 17 of the C.P.C. provides that, the Court should proceed to dispose of the suit in one of the modes directed in that behalf by Order 9. 6. Taking overall view of the matter, in my opinion, provisions of Order 9 Rule 8 and 9 of the C.P.C. are very much applicable in the present case and the application for restoration of the claim petition cannot be faulted merely because there is a mention of Order 9 Rule 13 of the 6 wp6530.10 C.P.C. in the impugned order. Apart from this, it is settled position of law that law of limitation is not applicable in cases of claim petitions and even claimants can bring fresh petitions. If this is so, in my opinion, the view taken by the Tribunal to restore the claim petition cannot be said to be unreasonable. Reasonable and possible view has been taken by the Tribunal and while setting aside the order of dismissing the claim petition in default for non prosecution, Rs.2000/- cost is imposed upon respondent Nos. 1 and 2 herein. 7. In that view of the matter, in my opinion, no interference in extraordinary jurisdiction of this Court in the impugned order is warranted. Hence the petition stands dismissed. 8. The contention of the Counsel for the petitioners and Counsel for respondent No.4 that the application for restoration was filed 7 wp6530.10 belatedly and the impugned order is passed by the learned Judge after six years and therefore, because of the fault of original claimants to take steps to restore the claim petition, the petitioner and respondent No. 4 should not be burdened to pay interest in case claim petition is allowed is concerned, in my opinion, such contention can be raised before the Tribunal and if it is raised, the Tribunal will decide the same in accordance with law. [S.S. SHINDE, J.] sut/JUL11