HIGH COURT OF UTTARANKHAND AT NAINITAL D.A.O. NO. 43/2007 Anoop Singh ….. Appellant Vs. Smt. Rubina Bano & Others …Respondents 17.4.2008 Hon’ble Rajesh Tandon, J. Heard Shri Nagesh Agrawal, counsel for the appellant. None is present for the respondents. 2. Present appeal has been preferred against the judgment and award dated 31.1.2003 passed by the Motor Accident Claims Tribunal, Roorkee in M.A.C.P. No. 30 of 2000 by which the claim petition has been allowed. 3. Counsel for the appellant simultaneously has preferred the writ petition against the said judgment and award which was dismissed as withdrawn on 7.3.2007 with the following order:- “Heard Sri Ajay Veer Pundir learned counsel for the petitioner, Sri Deepak Rawat learned counsel for the respondent No. 4 and learned standing counsel for the respondent no. 1. 2 Learned counsel for the petitioner seeks permission to withdraw the writ petition. Permission allowed. The writ petition is dismissed as withdrawn with liberty to avail appropriate remedy before the appropriate forum.” 4. The appellant thereafter has preferred the Appeal from Order on 3.4.2007 which has been reported to be barred by 1419 days. After filing the aforesaid appeal, an application was filed by the counsel Shri Ajay Veer Pundir for withdrawal of the appeal. The order was passed to the following effect on 4.4.2007:- “Present application has been filed by the appellant for withdrawal of the appeal with liberty to avail the appropriate remedy before the appropriate Court/M.A.C.T. Roorkee. Application is allowed. Appeal is dismissed as withdrawn.” 5. It appears that thereafter the appellant has filed another application under Order 9 Rule 7 CPC. The Claims Tribunal has rejected the said application on 17.1.2008. The Claims tribunal has also pointed out that the appellant has every knowledge and as such he has filed the application under 9 Rule 7 CPC which was rejected on 31.1.2007 and he has also preferred the writ petition being writ petition no. 43 of 2007 and writ petition no. 15 2007 where the orders were passed on 4.4.2007 and 7.3.2007 and both the writ petitions were withdrawn. The presiding officer has also 3 pointed out that after filing the written statement i.e. paper no. 22 kha, the appellant remained absent on the subsequent dates and on 10.11.2000, a direction was made for proceeding ex parte against him and ultimately the award was passed on 31.1.2003. The appellant has sufficient notice on 14.7.2000, thereafter, he appeared and filed the written statement and there was no reason not to appear on the dates posted by the presiding officer. 6. I have also perused the application under Section 5 of the Limitation Act for condoning the delay in filing the appeal. It reads as under:- “2. That due to mistake of the counsel of appellant, the order dated 31.1.2003 was passed ex parte and appellant was not aware about the ex parte order. 3. That on 14.3.2006 when appellant received notice regarding the execution of order dated 31.1.2003 then the appellant filed a restoration application against the order dated 31.1.2003 including the execution proceedings.” 7. I find no sufficient ground to condone the delay in filing the appeal. Consequently appeal stands dismissed. No order as to costs. (Rajesh Tandon, J. ) 17.4.2008 Avneet