- (1.) HEARD learned counsel for the parties.
(2.) ALTHOUGH the matter has come up for orders on stay application, but at the request of learned counsel for the parties, arguments were heard and appeal is being disposed off finally. Briefly stated the facts of the case are that the plaintiff-appellant filed a suit for declaration and permanent injunction in the trial court to declare orders dated 10.05.06 and 13.07.06 passed by the defendants-respondents as illegal and without jurisdiction and to restrain the defendants from recovering any amount in pursuance of impugned orders. Plaintiff in his suit pleaded that he was holding the post of Driver with the Defendant-RSRTC. Motor Accident Claims Tribunal, Dausa vide its award dated 25.03.2006 awarded a sum of Rs. 3,18,285/- to be recovered from RSRTC as well as the plaintiff, who was also impleaded as one of the non-applicants in the application for compensation filed by the claimant in respect of death of one Lalaram, arising out of a motor accident. The defendants vide impugned orders directed to recover 20% of the awarded amount from the plaintiff's salary, which is not permissible as per law, therefore, recovery orders are liable to be declared as illegal and without jurisdiction. The defendants filed their written statement wherein contents of plaint were denied and it was pleaded that due to rash and negligent driving of the driver an accident took place on 29.06.2003, wherein one Lalaram died and Motor Accident Claims Tribunal, Dausa passed an award against RSRTC. It was also pleaded that as per Rule of the Corporation, there is provision of deduction of 20% of the amount of award from the salary of driver, therefore, orders passed by the defendants are absolutely legal and justified. On the basis of pleadings of the parties, trial court framed four issues on 08.05.2009, which are reproduced in the impugned judgment dated 07.09.2009 and fixed the case for plaintiff's evidence for 06.07.2009. However, the case was adjourned on 06.07.2009 on the request of learned counsel for the plaintiff for 17.08.2009 and again for 07.09.2009. Since no one was present on behalf of the plaintiff on 07.09.2009, therefore, trial court closed plaintiff's evidence. Trial court also closed defendants' evidence observing that the defendants also not produced any oral or documentary evidence; on the same day, trial court heard the arguments and dismissed plaintiff's suit on 07.09.2009 itself. Being aggrieved with the same, the plaintiff has preferred this appeal. Submission of learned counsel for the appellant is that the plaintiff was a driver and he was not directed by his counsel to attend each and every date in the trial court. He was not informed about date fixed in the trial court for plaintiff's evidence i.e. 07.09.2009, therefore, he could not adduce his evidence. The plaintiff had already engaged a lawyer in the trial court, but his lawyer was not present on that day, the trial court instead of closing plaintiff's evidence and fixing the case for defendants' evidence on another date, not only closed the plaintiff's evidence but also closed defendants' evidence on the same day without fixing the case on some other date for defendants' evidence and also heard the arguments and dismissed plaintiff's suit. He also referred certified copies of the proceedings of the trial court dated 08.05.2009, 06.07.2009, 17.08.2009 and 07.09.2009. He, therefore, submitted that the plaintiff could not get reasonable opportunity to adduce his evidence and one more opportunity may be granted to him to adduce his evidence.
(3.) LEARNED counsel for the appellant also submitted that there is a circular issued by the respondent-RSRTC to the effect that as and when any award is passed in Motor Accident Claim Cases for recovery of the amount by Motor Accident Claims Tribunal against the Corporation alongwith driver, then no recovery can be made from the driver, if the driver has been acquitted by the trial court in criminal case and no departmental enquiry has been held against him; he submitted that appellant has been acquitted in criminal case and no departmental enquiry was held against him, therefore, impugned orders were liable to be declared as null and void, but due to above mentioned facts and circumstances, the plaintiff could not get proper opportunity to adduce his evidence, therefore, it will be just and proper to set aside impugned judgment and decree passed by the trial court and remand the matter back to the trial court for fresh decision of the suit. Learned counsel for the respondents defended the impugned judgment passed by trial court and argued for dismissal of the appeal, but he fairly and frankly did not dispute that Issues were framed in the case on 08.05.2009 and case was fixed for plaintiff's evidence on 06.07.2009, 17.08.2009 and 07.09.2009. Since, counsel of the plaintiff was not present on 07.09.09, therefore, the plaintiff's evidence was closed and on that day itself, the defendants' evidence was also closed and arguments were heard and the suit was dismissed on the same day. I have considered submissions of learned counsel for the parties and examined the impugned judgment passed by the trial court. ;