// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.10369/2008 Manbhari W/o Shri Hanumana Ram and Others Versus Motor Accident Claims Tribunal (District Judge), Jhunjhunu and Others Date of Order ::: 22.09.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Yogesh Kumar Sharma, Counsel for petitioners #### By the Court:- Heard learned counsel for the petitioner. The claimant-respondents No.2 to 5 filed an application under Sections 166 and 140 of the Motor Vehicles Act, 1988 for compensation, wherein the non-claimant No.1 (Petitioner No.3 herein), driver of the vehicle (Tractor) as well as non-claimant No.2 Jagram (petitioner No.2 herein) were served with a notice on 23rd November, 2004 and a 'vakalatnama' was filed on their behalf by their counsel Shri Subhash Poonia. Notice of non-claimant No.3 Manbhari (petitioner No.1 herein) was also served on 23rd November, 2004, but she did not appear before the Tribunal in spite of service of notice, therefore, an ex-parte order was passed against // 2 // her on 28th January, 2005. The non-claimants Jagram and Mahipal sought time to file reply to the claim petition but subsequently neither the reply was filed nor they or their counsel appeared, therefore, an ex-parte order was passed against both of them on 16th August, 2005. The claim petition was ultimately allowed by the Tribunal vide judgment dated 12th October, 2006. The non-claimants No.1 to 3 (the petitioners herein) filed an application under Order 9 Rule 13 read with Section 151 CPC for setting-aside the ex-parte decree passed against them but the same was dismissed by the Tribunal being barred by limitation as well as on merits vide order dated 12th August, 2008, which is under challenge in this writ petition. The learned counsel for the petitioners contended that although the notices upon the petitioners No.2 and 3 were served, but, in fact, notice on petitioner No.1 was not served and her forged thumb impression was put on the notice; they came to know about ex-parte decree dated 12th October, 2006 only on 5th March, 2007 and, from the date of knowledge, an application was moved within 30 days i.e. on 2nd April, 2007 but the learned Tribunal wrongly rejected their application. He contended that a period of 30 days should have been counted from the date of // 3 // knowledge i.e. 5th March, 2007 and not from the date of ex-parte decree and, in these circumstances, the Tribunal committed an illegality in rejecting their application. He also contended that the Tribunal wrongly presumed about service of summon on the petitioner No.1. I have examined the impugned judgment dated 12th August, 2008 passed by the Tribunal in the light of submissions of the learned counsel for petitioners. The learned counsel for the petitioners has not disputed that the notices of the claim application were served upon the petitioners No.2 and 3 on 23rd November, 2004 and 'vakalatnama' was also filed on their behalf by their counsel; they sought time to file reply to the claim petition but thereafter neither the written-statement was filed nor they appeared personally or through their counsel and, therefore, ex-parte order was passed. So far as the petitioner No.1 is concerned, the learned Tribunal has observed that she was also served with a notice on 23rd November, 2004 and she is the mother of Jagram and they both were served on 23rd November, 2004. There is a report of the process server that Smt. Manbhari was served with the notice personally. The Tribunal, therefore, recorded a // 4 // finding that the contention of the learned counsel cannot be accepted to the effect that her thumb impression is forged one. The Tribunal further observed that in these circumstances the period of limitation of 30 days will be counted from the date of the judgment as prescribed under Article 123 of the Limitation Act and not from the date of knowledge. The applicants did not file any application under Section 5 of the Limitation Act also for condonation of the delay in filing the application. Article 123 of the Limitation Act is reproduced as under:- Section Description of application Period of limitation Time from which period begins to run 123 To set aside a decree passed ex parte or to re- hear an appeal decreed or heard ex-parte Thirty days The date of the decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree. The aforesaid provision makes it clear that the period of limitation of 30 days shall commence from the date of decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree. The period of limitation of 30 days, from the date // 5 // of knowledge, commences only in a case where the notice or summon was not served on the applicant otherwise this period is counted from the date of decree. There is no dispute in the present case that the non-claimants No.1 and 2/petitioners No.2 and 3 were served with the notice of the claim petition on 23rd November, 2004 and they also filed their 'vakalatnama' through their counsel. So far as non-claimant No.3/petitioner No.1 is concerned, the finding of the Tribunal that she was also served with a notice appears to be perfectly justified. The reasons assigned in this regard by the Tribunal are perfectly justified in the eyes of law. I do not find any illegality, perversity or jurisdictional error in the impugned order so as to interfere with the same. The Hon'ble Supreme Court in Babhutmal Raichand Oswal Vs. Laxmibai R. Tarte – AIR 1975 SC 1297, held that the High Court cannot, while exercising jurisdiction under Article 227, interfere with finding 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. // 6 // The Hon'ble Supreme Court in Mohd. Yunus Vs. Mohd. Mustaqim – AIR 1984 SC 38 , held that in exercising the supervisory power under Article 227, the High Court does not act as an Appellate Court or Tribunal. In view of the above, there is no merit in this writ petition and the same is accordingly dismissed in limine. (Narendra Kumar Jain) J. //Jaiman//