PHOOLWATI & ANR vs DEVENDER & ORS.
$~11 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 14th May, 2024 + MAC.APP. 1265/2012 PHOOLWATI & ANR ….. Appellants Through: Mr.Mohit Nagpal, Advocate. versus DEVENDER & ORS. ….. Respondents Through: Mr.Pankaj Seth, Advocate. CORAM: HON’BLE MR. JUSTICE DHARMESH SHARMA DHARMESH SHARMA, J. (ORAL) CM APPL. 37331/2019, CM APPL. 37332/2019, REVIEW PET. 326/2019
1. This application has been preferred by the applicants/petitioners who are the wife and son of the deceased Late Ld.Col.Om Prakash seeking review of judgment dated 11.12.2017 passed by this Court whereby the appeal against the impugned judgment-cum-award dated 12.09.2012 passed by the learned Presiding Officer, Motor Accidents Claims Tribunal-II, Dwarka Courts, New Delhi1 was dismissed on merits.
2. Learned counsel for the applicants/petitioners has urged that neither the appellant nor his counsel was present when the matter was heard in the appeal by this Court on 11.12.2017 and reference is invited to decision by the Supreme Court in SLP No.23809/2023 tilted as Benny D Souza & Ors. v. Melwin DSouza decided on 24.11.2023
1 Presiding Officer
in which, having regard to the provisions of Order XLI Rule 17 CPC2, it was held that if the appellant does not appear when the appeal is called for hearing, the Court can only dismiss the appeal for non-prosecution and it cannot proceed to decide the appeal on merits.
3. At the outset since on 11.12.2017 neither the appellant nor his counsel was present, there is merit in the present review petition. However, the present review petition is accompanied with an application for condonation of delay of 533 days. Condonation is sought on the ground that the daughter-in-law of the applicant/appellant No.1 had lodged some false cases against her and she was suffering from spine problems since May 2017 besides being a patient of hypertension, and therefore, she could not pursue the present appeal. However, there is no explanation afforded as to why the son who is applicant/petitioner No.2 could not seek review of the impugned order of this Court dated 11.12.2017 well in time.
4. While this Court is inclined to allow the review application insofar as it has been decided without hearing the appellant or his counsel, unfortunately this is a stark case where the applicants/appellants have suffered for the blemishes on the part of their previous counsel. Learned counsel for the applicants/petitioners sought to urge in reference to ground (J); in the review petition that
2 17. Dismissal of appeal for appellants default.(1) Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed. 1 [Explanation.Nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits.] (2) Hearing appeal ex parte.Where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte.
during the course of proceedings/trial before the learned Tribunal, they had moved an application for summoning the concerned officer/ clerk from the income tax department to substantiate that the deceased was an income tax payee. Accordingly, the witness was summoned and he appeared before the Tribunal on 27.02.2012 but on that day the learned Presiding Officer, MACT was on leave.
5. Well, if that was the case, nothing prevented the claimants/petitioners to re-summon and examine the said witness. Both the learned Tribunal in its impugned judgment-cum-award dated 12.09.2012 as well as this Court in the previous award dated 11.12.2017 have observed that no sufficient evidence has been led on the part of the claimants to hold that the deceased at the age of 52 years was an income tax payee having a stable or consistent source of income apart from the pensionary benefits.
6. In view of the foregoing discussion, this Court finds that there is no sufficient cause brought home by the applicants/petitioners for condonation of delay of 533 days in filing the present review petition. Anyhow even if for the sake of convenience, condonation of delay is allowed and review is also allowed, there is absolutely no case on merits for modification and enhancement of amount of compensation awarded.
7. In view of the above, the application for condonation of delay is disallowed, and accordingly, the review petition does not merit any consideration.
DHARMESH SHARMA, J. MAY 14, 2024/VLD