SAMSUL HUDA Vs. LONDON AND LANCASHIRE INSURANCE CO. LTD. AND OTHERS

JUDGEMENT

(1.) THE petitioner's brother Abdul Mannan died of motor accident on 2nd January, 1966 on the South Trunk Road in front of the Arts building of the Gauhati University, Jalukbari. The deceased was a post graduate student of the Gauhati University. The petitioner along with pro forma opposite parties Nos. 4 to 12 filed a claim petition under Section 110 -A of the Motor Vehicles Act. 1939 before the Motor Accidents Claims Tribunal, Assam. On 24th April, 1967 the claimant filed written up processes for service of summonses on the witnesses. The claimant also prayed that 3 of the witnesses, namely, the Vice Chancellor, the Registrar and a Professor of the Gauhati University might be examined on commission. The Claims Tribunal did not pass any order on that petition, but observed that the prayer might be considered later. Later on, the case was transferred to the file of District Judge, L. A. D. Gauhati. who was appointed the Claims Tribunal and it was renumbered as MAC 29 of 1968. The case was fixed for hearing on 30th June, 1969. The claimants filed an application on 26th June, 1969 praying for an adjournment of the hearing fixed on 30th June, 1969. In their application the claimants stated that due to illness of the petitioner who was conducting the case on behalf of the claimants they could not take steps in the case as ordered by the Court and it was also stated that most of the witnesses were students of the Gauhati University, who had gone away after completion of their studies and as such the claimants required some time to collect the present addresses of the witnesses. The learned Claims Tribunal ordered on 26th June. 1969 to put up the petition with record on the date fixed i.e., 30th June, 1969. Due to illness the petitioner could not stay at Gauhati till 30th June. 1969 and left for Nowgong and he failed to come on 30th June, 1969 to take steps and his lawyer prayed for an adjournment, but the same was rejected and the case was dismissed for default.

(2.) IT is stated that the petitioner was lying ill at his house in Nowgong and he recovered from his illness sometime on 6th August, 1969 and he received a letter from his advocate on 7th August, 1969 from which he could learn about the dismissal of the case for default. He came to Gauhati and on 11th August, 1969 filed a petition under Order 9. Rule 9 read with Section 151 of the Civil Procedure Code for setting aside the order of dismissal and for restoration of the case to the file. The petition was supported by an affidavit sworn by the present petitioner. He also filed another application with affidavit praying for condonation of the delay in filing the application for restoration of the case. The learned Claims Tribunal fixed 26th November. 1969 for hearing the petition for condonation of delay. On 26th November 1969 the petition was dismissed as the petitioner was found absent on call at 12 O'clock. On the same date i.e., 26th November, 1969 the petitioner filed an application at 2 -15 P. M. stating that while coming in a jeep from Nowgong to attend the court, the jeep went out of order on the way and he was unable to attend the Court in time and so he prayed that the case might be revived for the ends of justice. A copy of the same is Annexure D to the present petition. By his order dated 23rd December, 1969 the learned Claims Tribunal rejected the petition.

(3.) THE present petition under Article 226 read with Article 227 of the Constitution of India has also been filed against the order dated 30th June, 1969 passed by the learned Claims Tribunal.