IN TlAJlIGH COURT OF CHHATTISGARH AT BILASPUR (CG) M.A.NO. ,^-l 7 /20Q^ APPELLANTS A) ^- ^ j^f Smt Laxmi bai alias Laxmin bai Wd/o. Late Shri Surendra Kumar Gupta, aged about 22 years (presently 36 years) Kumari ^ayatri, D/o. Late Shri Surendra Kumar Gupta, aged about 7 years (presently 20 years). Bhawani, s/o. Late Shri Surendra Kumar Gupta, aged about 4 years, ^^^' (presently 16 years) . ^^^ ^-<^'*^ T^* 4) Hansraj, s/o. Late Shri Surendra '.'^"^'^' ..j* Kumar Gupta, aged about 1 year (presently 15 years). '<>' ^::- ^'^ ^" •'^^ ..^•%^ ^t:^^'( -^""r s 5) Virendra Kumar, s/o. Late Shri Surendra Kumar Gupta, aged about 6 years (presently 19 years). Sl.No. 2 to 5 are minors, through : their natural guardian mother i.e. Appellant No.l 6) Smt. Nankibai, Wd/o. Late Shri Bhura Sao, aged aboutSO years (presently 63 years). All are belonging to Caste - Vaishya, Occupation-dependant, r/o. village- Gharghora, Police Station and Tahsil - Gharghora, Distt. Raigarh, Chhattisgarh. RESPONDENTS ,1) 2) VE RS U S Ram Kumar s/o. Harichand Yadav, aged 26 ^,'jars (presently 39 years), Occupation ~ Driver, r/o. Purani Bad^ Para, (Nayaganj) Raigarh (Chhattisgarh). (DRIVER) Arjun Lal Tamrakar, s/o. Sashwanath, aged about 34 years (presently 48 years), occupation-Service, (clerk in the Court of District & Sessions Judge, District-Raigarh) (Chhattisgarh). (VEHICLE OWNER) . ^-^6..^r ^ < StetioB-Qharghora, Raigarh, Chhattisgarh. y-s^ (, .l)-17 rf II H li r ll' '^; lii ii r; l^ mCH COURT OF CHHATTISGARHL miASPUR M.A.NO. 299 OF 2003 DB: HON*BLB I.M. QUDDUSI & HON'BLE N.K. AORAWAL, JJ MISC. APPEAL No.299 OF 2003 Vs. RESPONDBNTS Ram Kumar and others MISC. APPBAL UNDER SBCTION 173 OF THB MOTOR VI2IICLES ACT. 1988 READ WITH 8ECTION 110 tDt OF THE MOTOR VBHICLBS ACT, 1939 APPBARANCB: Mr. A.N. Bhakta, counsel for fhe appellant. Mr. Smyakant Mishra, counsel for fhe respondents. JUDOMBNT (ORAU (31.08.2010) Per LM. OUDDUSI 1. This tiine barred appeal has been filed agamst the order dated 15.11.1990 passed by II Addl. Motor Accident Claims Tribunal, Raigarh, whereby the clauii filed by fhe AppeUaats has been dismissed on fhe ground that the claimaats/appellants failed to produce fhe evidence despite several opportunities granted to them on 21.06.1989, 18.7.89, 03.08.89, 21.9.1989, 03.11.1989, 13.2.90, 29.03.1990, 02.05.1990, 14.7.1990. The claim applfcation was pendic^ siace 28.9.1987. 2. The impugned order was passed under Riile 3 rcad with Rule 2 of the Order 17 of the Code of CivU Procedure. Rule 2 of Order 17 lays down the procediirc as under: Is^ APPBLLANTS Smt. Laxnu Bai and others 2. Procedure if parties fall to appear on day fixed.- Where, on aay day to which the hearing of fhe sidt is adjouraed, the pardes or any of them fail to appear, fhe Court inay proceed to dispose ofthe suit ia one offhe niodes directed ia fhat behatf by order IX or niake such ofher order ^y as it thiaks fit. Rule 3 of Order XVII is also relevant here and quoted below: r< 3. Court may proceed notwlthstandiag either party faUs to produce evidence, etc.—Where aay party to a suit to whom titoe has been graated fails to produce his evidence, or to cause the attendaace of his witaesses, or to perfonn aoy other act necessaxy to the fiirther progress of the suit, for whlch time has been aUowed, fhe Court inay, notwifhstaEidiag sueh default,— (a) If the parties are present, proceed to decide the suit forthwith, or (b) if the pardes are, or any of them is, absent, proceed under nde 2 ^f A bare perusal of Rule 3 Order 17 sliows that if the pardes or aiiy of them are/is absent then nde 2 Order 17 CPC quoted above mandates fhat the Court may proceed to dispose of suit in one of the modes directed ia that behalf by Oxder DC or make such other order as it tiunks fit. 4. In case of disinissal of a suit on fhe groiind of mention in Rule 3 read with Rule 2 of Order 17 CPC, the remedy lies for moviag application for settiag aside the dismissal oider under Order 9 Rule 9 CPC. 5. In view of fhe above, tius appeal is not at all mamtainable and the same is disxnissed as such. Not '^^^w^s 3J. 'l only on merits, but looking to the question of delay m filmg this appeal which is barred by limitation of 4314 days, it is not mauitainable on this grouiid also. However, this will not debar the appeUants &om filnig the appUcation before the concerued Court for setting aside the dismissal order. Sd/- N.KJjudge Sd/- IJM. Quddusi Judge J~- ^s^- "^•'^- ^^