C.R. No. 6606 of 2005 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH C.R. No. 6606 of 2005 (O&M) Date of Decision :7.8.2009 Fakir Chand .......... Petitioner Versus Sarwan Ram & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. S.K. Yadav, Advocate for Mr. G.P. Singh, advocate for the petitioner. Mr. S.K. Jain, Advocate for the respondents. **** VINOD K. SHARMA, J. (ORAL) The petitioner has invoked the jurisdiction of this Court under Article 227 of the Constitution of India to challenge the order passed by the learned Motor Accident Claims Tribunal, Sirsa, vide which application moved by the petitioner for restoration of the claim petition dismissed in default, has been ordered to be dismissed. The petitioner has filed a claim petition under Section 166 of the Motor Vehicle Act, 1988 titled Fakir Chand & others Vs. Sarwan Ram & another, for compensation on account of motor vehicular accident. The case set up by the petitioner is, that the claim petition was filed by Sh. H.C. Monga and Rajesh Monga Advocates but in spite of enquiries having been made, they never told about the fate of their claim C.R. No. 6606 of 2005 2 petition. It was on 24.1.2005, the petitioners came to know, that their claim petition which stood dismissed on 9.2.2000. The petitioner also moved an application under Section 5 of the Limitation Act, seeking condonation of delay in moving the application. The application was contested, wherein it was pleaded, that no ground for restoration of the claim petition was made out, especially after a period of five years. The learned Tribunal referred to Article 122 of the Limitation Act, to record a finding, that the limitation for setting aside an order of dismissal is 30 days, whereas this application has been filed after lapse of five years. No explanation was forthcoming for condoning the delay. The petitioner challenged the order primarily on the ground, that the application filed was within time and bona fide, as it was filed immediately coming to know about the dismissal of the case in default. It was also pleaded, that the petitioner should not be allowed to suffer for the lapse on the part of the counsel, in not informing him about the progress of the case. It was therefore claimed, that the application was within time from the date of knowledge. The learned counsel appearing on behalf of the respondent, has referred to the zimini orders passed by the learned Tribunal to contend that the act of getting the claim petition dismissed in default was deliberate, as in spite of availing number of opportunities no witness was examined by the claimants. In order to appreciate the contention, it has to be noticed, that there is no limitation prescribed for filing of the claim petition, once the C.R. No. 6606 of 2005 3 fresh petition was competent, there was no reason for the Tribunal to take hyper technical view for declining the restoration of application, especially, when the plea raised was, that the delay was on account of the fact, that the counsel had failed to inform him about the progress of the case. The zimini order did not prove the fact, that any intimation given by the counsel to the petitioner. There was no ground whatsoever to get the claim petition dismissed. The learned Tribunal was not justified in rejecting the application on the ground, that the explanation of delay was not shown. The averments made in the application disclosed good reasons for non- appearance i.e. the fault of the counsel, in not informing the claimant / applicant about progress of the case. For the reasons stated above, revision is allowed. The application moved by the applicant / petitioner for setting aside the order, dismissing the claim petition in default, is allowed, but with no order as to costs. However, it is made clear, that as the claim petition is restored after so many years, in the event of success of the petition, while granting interest on awarded amount, this fact be also taken note of. 7.8.2009 ( VINOD K. SHARMA ) 'sp' JUDGE