-A^JS. •" • IN THE HIGH COURT OF CHHATTISGARH AT BILASPU@tt;G3 ,iQ M. A. fC) N0. ^' OF 2001 APPELLANTS CLAIMANTS 1. Shobhnath Son'of Govind, aged ^/ about 68 years; 2. Devi Kumari widow of Late Parmeshwar, aged about 34 years^ 3. Umakanti D/o Late Parmeshwar, aged about 17 years; 4. Gupesh Kumar Son of Late Parmeshwar, aged about 12 years; Ashok Kumar @ Sonu Son of Late Parmeshwar, aged about 10 years;^" Yogeshwari @ Nanki D/o Late Parmeshwar, aged about 14 years; ,, The appellant No.3 to 6 are Minors, thr.ough their natural guardian Mother Devi Kumari. All castes Koir, Resident of Village Morga, Police Station Patna, Tahsil Baikunthpur, District Koriya (C.G.). ^' VERSUS RESPONDENTS NON-APPLICANTS 'h^- 1. CQ^ S^'.A° ^'., 2. Prahlad Rai Agrawal Son of Sadhuram Agrawal, aged about 53 years, Resident of Village Surajpur, District Surguja (C.G.). Sjjrajrqim Son of-NotJ<ft8ww, aged P.omrk^ 'about 37 years, Resident_of V^llage ~3ornwU^ 'fruyei^er^yh; JP-J'- Kaq4? Post -P?trfa,' District Koriya (C.G.). •A 3. PB'rsottam Dalmiya Son of Not Known, Resident of Village Main Road Surajpur, District Surguja (C.G.). 4. United India Insurance Company Limited, Branch Office Ambikapur, District Surguja (C.G.). APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLE ACT READ WITH ORDER 43 RULE 1 (tt OF THE CODE OF CIVILPRO£EDURE age@ steoa'K 3S Beinc, the D 5/20 anc' HIGH COURT OF CHHAmSGARH AT BILASPUR APPELLANT RESPONDENTS M.A.C. No. 249/2009 Shobhnath and others Versus Prahlad Rai Agrawal and others SB:- HON'BLE SHRI N.K. AGARWAL, J. PRESENT:- Shri Ashok Kumar Shukla, Advocate for the appeUants. Shri H.B. Agrawal, Sr. Adv. with Shri Pankaj Agrawal, Advocate for the respondent No. 4. None appears for respondents No. 1,2 and 3-A. ORAL ORDER (18-11-2010) Per N.K. Agarwal, J. 1. With the consent of the parties, the matter is heard finally at motion stage. 2. Feeling aggrieved and dissatisfied by the order dated 14-8- 2007 passed by the District Judge, Korea (Baikunthpur) in Misc. Civil Case No. 5/2003, the instant misc. appeal has been preferred by fhe claimants. 3. Facts of the case in brief are that appellants'/clalapants' claim petition was dismissed by the Claims Tribunai-dn 21-6-2003 on the ground that the claimants are not > taldng any interest in prosecuting their case and also not examining their witnesses despite several opportunities given to them. There-against, the appellants have preferred restoration application under Order 9 Rule 9 of Code of Civil Procedure before the concerned Claims Tribunal. The same was dismissed by the order impugned on the ground that the claim was dismissed under Order 17 Rule 3 and not under Order 17 Rule 2 of C.P.C. and, therefore, the application under Order 9 Rule 9 of the C.P.C. is not maintainable. Hence this appeal. ^SaB ^. 7. 8. I have heard learned counsel for the parties and perused the order impugned and the order dated 21-6-2003 passed by the Claims Tribunal. Indisputably, oh the date of evidence, neither the appellant nor their witnesses were present and it is also not in dispute that the appellants evidence was yet to begin. In such circumstances, the order passed by leamed Tribunal dismissing the claim petition on 21-6-2003 was in fact under Order 9 rule 8 of C.P.C. and not under Order 17 Rule 3 of C.P.C. and leamed Court below has erred in dismissing the restoration application filed under Order 9 Rule 9 of C.P.C. on the ground, the order of dismissal of claim petition was passed under Order 17 Rule 3 of C.P.C. In view of the above,in the considered opinion of this Court, the order impugned is not sustainabte in law. The sarne deserves to be and is hereby set aside. The matter is remitted back to the Tribunal for deciding the restoration application filed by the appellants afresh in the Ught of the observations madeabove. The restoi-ation application shall be restored to its original number and after issuing notice to the respondents not present here and after giving opportunity to adduce evidence to fhe parties, the restoration application shall be decided afresh. The parties shall appear before the Tribunal along-with copy of this order on 3-1-2011. ~~——-— Sd/- N.K. Agrawa! p/ •V