^-- ;t^, SingIeBBnch IN THE HIGH COURT OF CHHATTISGARH AT BILASPSUR Misc.Appeal No: IM^,/03- ^PELLANT CLAIMANT SSSSPONDENTS 'NON-APPLICANT ^- <^- ^ %^'o?" ^-^1' ^- .: •^' ^ 3. ^^Smt Rajan Bai, W/0 Devsaran Pd Rajwareg, aged about 50 years, R/0 Augustpur, P.S. & Tah- Surajpur, Distt-Surguga (C.G) VERSUS The Oriental Insurance Corp. Ltd Through the'Branch Manage-r, Sadar Road, Ambikapur Rameshwar Pratap Singh, S/0 Lal Mahamaya Pratap. Singh aged about 50 years, R/0 Kaskela, Tah-Surajpur, Dlst-Surguja (C.G.) Pradeep kumar @ Seemol S/0 Shiwlal, R/0 Salka, Bhatgau, Surajpur, Dist- ,Surguja (C.G) r? APPEAL UNDER ORDER 43 RULE 1 (C) OFCIVIL PROCEDURE CODE ^ WH^TWW^ '3^r T^i^i<n^, yTii^^Ko, [sidi-y^ ^^.(^, ^^r-/^ '^200 31T^T Tra^ ( ytf^^) ^I^T^Tf^FF 'WT^TT^T^ri^F ^4-- !/• \ I^TW^ft^ ^??^T SB: HON'BLE SHRI JUSTICE N 10-7-2009 117 Smt. Meena Shastri, Adv. Shri A.K. Athale, Adv. for Feeling aggrieved by the Case No. 5/2002 by Second Ad^ Suraipur, Distt. Surguja wherel b.y the appellant/claimant und^ dismissed by the learned Trib| dismissal has been passed by C.P.C. and not under Order application under Order 9 Rul appellant has preferred this app| I have heard learned co| recoid. Brief facts of the case ard appellant was fix^d for evidencj Tribunal disniissed the claim p4 that in fact, applicanf/appellarit| There is no mention in the orddi passed by learned Tribunal und| Learned counsel for the 1 the dismissal order dated 10-4-1 oC the appellant has been df appellant^or her counsel, and't|- c^(^t<n<^<i TTm^ff ^f fs^l {Fsl^K ^'3TRR3?1^[ K. AGARWAL for the appellant. |hie respondent No. 1. j).rder dated 17-9-2003 passed in Claim (^itional Motor Accident Claims Tribunal, }y and \vhereundcr, the applicatio'i filed ;r Order 9 Rule 9- of C.P.C. has been ^inal "n the grouiid f^at rhe ord-r •-f Lhe Tribunal under Order 17 Rule 3 of Rule 2 of C.P.C. and, therefore, the 9 of C.P.C. is not maintainable, the ^al. ^rnsel for the parties and perused the that the claim petition preferred by the on 10-4-2001.0n 10-^-2u01, lc.nifcd tition preferred by the appellant holding as well as her counsel both were c.bsent. r that the said dismissal order has been ;r Order 17 Rule 3 ofC.P.C. ppellant submits that a bare per^sal of 'OOi would reveal tl.aL the claim petiuon smissed on nbn-/'ppearance of r :ther icrefore, the disrnissal o-der wa^ in fa^t <3> XI-HC—78 *11*ICT8 yhWOh T^ T<ll<1!<rl^, yTll-M^Ko, fs|<rliy^< p^. ^e, ovr-/^J •"^200 ^TI^T 11T?^ (^qf^qc^T) W^ ^T Riw WT 3TT^T^7RhF -->^, •-^ •4 C>«ll^R^rft<T3^T^l passed under the provisions of (\ the provision of Order 17 Rul^ preferred by the appellant was ccj in holding that theorder was l^ against which only appeal lies| places her reliance upon the pro^) Order 17 Rule 3 ofC.P.C. Per contra, learned Couns^ impugned order. A bare perusal of the orde| claim petition has been dismiss^ appellant as weil as her counsel.] "2. any day to which the hea^ or any of thena fail to app( the suit in one of the mo,d| make such other o.rder as 3. Court may procee^ produce evidence etc. - has been granted fails. to| atfendance of his witness,] the further progress of th<| the Court may, notwithsta| (a) if the parties are forthwith; or ehi^t<n4i'< **iH<nf'^* f^^t' <f^^i< efr^ffiW^IT^T )rder 17 Rule 2 of C.P.C. and not under 3 of C.P.C. Therefore, the application, )mpetent and learned Tribunal has erred assed under Order 17 Rule 3 of C.P.C. , In her support, Smt. MeenaShastri isions contained in Order 17 Rule 2 and 1 for the respondent No. 1 supported the r dated 10-4-2001 would reveal that the kd by the Tribunal in the absence of the Order 17 Rule 2 and 3 reads thus:- Procedure if partie|s fail to appear on day flxed- where on \ing of the suit is adjourned, the parties |ar, the Court may proceed to dispose of ^s directed tn that behalf by Order IX or |t thinks fit. notwithstanding either party fails to ^/rhere any party to a suit to whom time procare his evidence, or to cause the |or to perform any other act neces^aiy to ^ suit, for wliich time has been allowed; ^iding such default present, proceed to decide the suit ^ -n- -HC—78 ^MCTJ WflW 75T'<ll<li<rt^, yiTil<-i<i<o, [®i(ni'<-il|< ^•<3h^-'/t>3"^200 3TI^T XI^F (^3^?) ^T^I'SFF'f^TbF WF ^TI^T^IW ^ '^ •^ ^^Ml€5jfrt;;' ^OT*«<,-. ^•^^W.Qu: ^ ^- ./ v '^HW^fiH 3?7^T (b) if the parties are, or rule 2. Order. 17 Rule 3 ofC.P.C. ffie Cdurt^may^proceed to decid^ any of them is absent, the Court In^ fhe instant case, the learned Tribunal holding that in v^v^re-3.bsent and in the absence beeri passed- and, therefore, the , order passed under Order 17 R\. order 'faas been passed under O] th^; ^aid disnitssal: order has in Therefore, the application filed appellant was competent and it| the ground of non-maintainabilit] In view of the aforesaid di| be and is hereby allowed and th| Tribunal to decide the applicaticj Rule 9 pf C.P.C. on its own merit] No order as to costs. °^Prf^Tzfr? 'RTR'^f ^ f^2t if^t^K ^'37RW3?I1^[ any of thein is, absent, proceed under provides that if the parties are present, .the suit forthwith but if parties are or may proceed under Orderl7 Rule 2. ^laim petition has been dismissed by Fact, the claimant as well as her counsel 6f party, the said dismissal order h^s order passed cannot be said to be aii ile 3 of C.P.C. on the contrary, the said •der 17 Rule 2 of C.P.C. and, therefore, [act been passed unden Order 9, C.P.C. under Order 9 Rule 9, C.P.C. by the ^ dismissal by the lcarned Tribunal on / is contrary to law. >cussion, the instant appeal deserves to " matter is remitted back to the learned >n filed by the appellant under Order 9 s in accordance with law. Sd/- N. K. Agarwal Judge +