C.R. No.5992 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No.5992 of 2009 (O&M) Date of Decision: 20.07.2010 Umesh ……Petitioner VERSUS Rajinder ……Respondent CORAM: HON'BLE MR. JUSTICE ALOK SINGH -.- Present: Mr. R.C. Dogra, Sr. Advocate with Ms. Balwinder Kaur, Advocate for the petitioner. Mr. A.K. Tyagi, Advocate for respondent No.1. 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporters or not? Yes 3. Whether the judgment should be reported in the Digest? Yes ALOK SINGH, J. (ORAL) C.R. No.5992 of 2009 (O&M) -2- 1. Petitioner has invoked revisional jurisdiction of this Court under Article 227 of the Constitution of India challenging the order dated 17.9.2009 passed by Motor Accident Claims Tribunal, Sone- pat, thereby dismissing application of the petitioner under Order 9 Rule 13 C.P.C. for setting aside the award dated 7.4.2006. 2. Brief facts of the present case are that claim petition was filed against the petitioner as well as against respondent No.2 by the respondent No.1 on the ground that respondent No.1/claimant was traveling in a three-wheeler while going from Ganaur to Village Gha- soli on 8.10.2003; another three-wheeler No.HYS-8095 driven by pe- titioner rashly and negligently came from the Bega side and knocked down the right side of the claimant’s three wheeler, as a result whereof claimant/respondent No.1 sustained grievous injuries; claim- ant was taken to Aggarwal Hospital, Ganaur where he remained ad- mitted for 20 days; the report of the accident was given to the police on 20.10.2003 leading to the registration of FIR No.243/03 under Sections 279/337/338 IPC; claimant was working as a Muneem (Ac- counts Clerk) in Gaushala, Ganaur Mandi, having a monthly income of Rs.8,000/-; he remained admitted in Aggarwal Hospital for 20 days and spent Rs.90,000/- on his treatment; he claimed a compensation of Rs.4 lacs; notices were issued to the respondents in the claim pe- tition. Learned Tribunal directed ex-parte proceedings against the re- spondents in claim petition vide order dated 1.5.2004. Ultimately, C.R. No.5992 of 2009 (O&M) -3- the claim petition was allowed vide order dated 7.4.2006. Learned Tribunal awarded sum of Rs.97,600/- in favour of the claimant/re- spondent No.1 with costs and interest @ 6% per annum from the date of petition till payment against respondents No.1 and 2 in the claim petition and directed to pay it jointly and severally. 3. Execution Petition No.6/07 was commenced on the re- quest of the claimant. In the execution petition, objections were filed by the petitioner herein on 16.2.2008. Objections filed by the peti- tioner herein were dismissed on 10.1.2009. After the dismissal of the objections in the execution petition, present petitioner moved an ap- plication under Order 9 Rule 13 C.P.C. for setting aside the ex-parte award dated 7.4.2006 which was dismissed by the learned Tribunal vide impugned judgment dated 17.9.2009. 4. Learned Counsel for the petitioner vehemently argued that in the interest of justice case should be decided on merit and ex- parte award should have been set aside and petitioner should have been permitted to contest the claim petition. 5. Ex-parte award was passed vide judgment dated 7.4.2006 against the petitioner and respondent No.2 herein. Undis- putedly, in the Execution Petition No.6/07 petitioner herein moved an objection on 16.2.2008. Undisputedly, objection petition of the peti- tioner was dismissed on 10.1.2009. Thereafter, application under C.R. No.5992 of 2009 (O&M) -4- Order 9 Rule 13 C.P.C. was moved for setting aside ex-parte award on 27.5.2009. 6. An application under Order 9 Rule 13 C.P.C. to set aside the ex-parte decree can be moved within 30 days from the date of knowledge of ex-parte decree as per Article 123 of Indian Limitation Act. Ex-parte decree can be set aside when the defendant satisfies the Court that summons was not duly served or that he was pre- vented by any sufficient cause from appearing when the suit was called on for hearing. However, irregularity in service of summons is no ground to set aside the ex-parte decree. Delay in moving the ap- plication under Order 9 Rule 13 C.P.C. can be condoned under Sec- tion 5 of the Limitation Act provided that defendant/applicant satisfies the Court that there was reasonable ground for not moving the appli- cation under Order 9 Rule 13 C.P.C. within time. 7. From the undisputed fact it is revealed that petitioner did not opt to move application under Order 9 Rule 13 C.P.C. for setting aside ex-parte decree rather he opted for filing objections in the exe- cution petition on 16.2.2008. Filing of objection petition in execution case on 16.2.2008 goes to prove that petitioner acquired knowledge about the ex-parte decree atleast on 16.2.2008. No explanation is given in the application under Order 9 Rule 13 C.P.C. nor was any application under Section 5 of the Limitation Act moved explaining the delay in filing the application on 27.5.2009. It is important to C.R. No.5992 of 2009 (O&M) -5- mention here that objection petition was dismissed on 10.1.2009. Application under Order 9 Rule 13 C.P.C. should have been filed in any case within 30 days from 10.1.2009 to show his bona fide that under the wrong advice he has taken wrong course by filing the ob- jection in the execution. However, application to set aside ex-parte award was filed on 27.5.2009 with undue delay. 8. I find no illegality or perversity in the view taken by learned Court below. 9. Petition is devoid of merit, hence, is dismissed. 10. Pursuant to the direction of this Court vide order dated 23.12.2009, petitioner herein has deposited principle amount of com- pensation with the learned Executing Court. Same shall be with- drawn by the claimant subject to the adjustment in the execution for the remaining outstanding amount, if any. ( ALOK SINGH ) 20th July, 2010 JUDGE ashish