IN THE HIGH COURT OF JUDICATURE AT PATNA C. REV. No.40 of 2009 DHROOV RAI @ DHRUP RAI Versus MOST.GEETA KUER@MOST.GITA KUWA ----------- 2. 19.08.2009 I.A. No. 954 of 2009 is a petition under Section 5 of the Limitation Act wherein prayer has been made for condoning the delay of 24 days in the filing of civil review. Upon hearing the learned counsel for the petitioner and the grounds as mentioned in the civil review, the delay is condoned. The I.A. is allowed accordingly. In this application, the review of this Court’s order dated 18.12.2008 in M.A. No. 114 of 2007 is sought only on the ground that the counsel for the appellant was not present, hence, this Court could not have decided the appeal on merit but it could have been decided only on the ground of non-prosecution under Order 41 Rule-11(1) & (2) of the Civil Procedure Code. In support of this contention, the decision of the Hon’ble Supreme Court in the case of Ajit Kumar Singh & others versus Chiranjibi Lal and others reported in (2002)3 Supreme Court Cases 609 is cited and it has been discussed that the power of the Appellate Court under Rule 11(1) of the Code of Civil Procedure to dismiss the appeal extends only about dismissal of appeal on non-prosecution and not about the dismissal - 2 - thereof on merits. The learned counsel for the review petitioner argued that in this case the counsel on record was not present on 18.12.2008 when the order was passed considering the merits of the appeal. Hence, it was argued that the order is not according to the provision under Order 41 Rule 11(1) Of the C.P.C. Therefore, the order be recalled and the matter be heard on merits and the appeal be decided on hearing the appellant. The order dated 18.12.2008 mentions that on that date, on repeated calls, the two advocates on Vakalatnama on behalf of the appellant, had not appeared to argue the case but one Mr. Rana Ran Vijay Pratap, advocate had appeared and submitted that he had no instructions but he had tried to submit the facts of the case, thus, he was heard on facts and the record was perused and thereafter, the order was passed. The order relates to payment of interim compensation of Rs. 50,000/- to the claimant on no fault basis. The review petitioner is said to be the owner of the tractor causing accident. Due to negligent and rash driving of tractor, the deceased had been crushed under the wheels of the tractor and the F.I.R. under Section 279 and 304A of the Indian Penal Code was instituted and charge sheet was also submitted. The appellant was the owner of the - 3 - tractor who simply denied that the accident having been caused by tractor but nothing was explained. In such view of the matters, the appeal was dismissed upholding the order of the Claims Tribunal, allowing compensation payable from the owner i.e. the appellant who happens to be the review petitioner in this appeal. Considering the facts and circumstances of the case, though the counsel on record was not present but the appellant was represented by one another counsel who also submitted the facts of the case and the important relevant facts were also considered by the Court, I do not find it a fit case for review. Accordingly, the review application is dismissed. (C.M. Prasad, J.) Ravi/-