.abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 452 OF 2008 IN FIRST APPEAL (S) NO. 2124 OF 2008 ------------------------------------------------------------------------ Office Notes, Office Memoranda of : coram, appearances, Court’s Orders: Court’s or Judge’s orders or directions and Registrar Orders: ------------------------------------------------------------------------ Mr.S.D. Pendse i/bv Mr.R.P. Behere for the appellant. Mr.T.J. Mendon for respondent no.1. CORAM : D.G. KARNIK, J. DATE : 11TH NOVEMBER 2008 P.C. P.C. P.C. : 1. Heard learned counsel for the appellant and respondent no.1. 2. This application is made for condonation of delay of 138 days in filing of the appeal. 3. Learned counsel for respondent no.1 raised a preliminary objection to the maintainability of the application. He pointed out that the civil application against respondent no.2 has been dismissed - 2 - by an order dated 1st August 2008 for not taking steps for service on respondent no.2. He submitted that respondent no.2 is a necessary party to the appeal as well as the present application and in his absence the application is not maintainable. 4. Respondent no.1 had filed a claim for compensation against respondent no.2, who is the owner of the motor vehicle, for compensation for the injuries sustained by him in the accident caused by the vehicle belonging to the respondent no.2. The present appellant, which is an insurance company, was joined as a party insurer only. A decree was passed against respondent no.2 and the appellant insurance company was held liable as the insurer of the motor vehicle. 5. Counsel for the appellant submitted that the claim for compensation principally was against the respondent no.2 who was the owner of the vehicle and the liability of the appellant-insurance company arises out of contract of - 3 - insurance and the statutory liability to pay the amount on behalf of respondent no.2. If the respondent no.2 is not liable, the appellant also would not be liable. The respondent no.2 is therefore necessary party to the appeal and necessary party to the application for condonation of delay. Counsel for the appellant did not advance any argument controverting this submission. He only submitted that respondent no.2 was served by R.P. & A.D. and affidavit of service was also filed. The order of dismissal of the appeal against the respondent no.2 was erroneously passed. Record discloses that respondent no.2 was not served. Office note dated 30th July 2008 mentions: "Affidavit of service filed with UDP (undelivered packet) with postal remark "company left from given address." Since respondent no.2 company had left the office premises, the postal packet was returned without service. To the affidavit of service, the appellant has annexed two undelivered envelops addressed to the respondent no.2. This clearly shows that the respondent no.2 was not - 4 - served. That apart, by a common order dated 1st August 2008, this Court specifically dismissed the appeal against respondent no.2 who was unserved. The order of this Court dismissing the appeal for non-service on respondent no.2 has become final and has not been challenged. The order having become final, the submission that respondent no.2 has been served and the order of dismissal against the respondent no.2 was erroneously passed has to be rejected. 6. As already held, respondent no.2 was a necessary party to the appeal as well as the application for condonation of delay. As the application against it has been dismissed, the application has to be dismissed against the respondent no.1 as well. 7. In the circumstances, the civil application is dismissed. (D.G. KARNIK, J.)