# ICICI Lombard General Insurance Co. Ltd., Lko v. Smt. Rambeti & Ors. 504 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2023) 12 ILRA 503
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-12
- **Case number:** Matters U/A 227 No. 6160 of 2023
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/icici-lombard-general-insurance-co-ltd-lko-v-smt-rambeti-ors-504-indian-law-49618
- **Pages:** 5

## Headnote

Law
-
U.P.
Motor
Vehicles
Act,1988-Sections 166, 168 & 169-Code of
Civil Procedure, 1908-Order 19 - Rule 3U.P. Motor Vehicle Rules, 1998- Rule 224
A(7)-Tribunal rejected the application on
the
ground
that
application
is
not
supported by affidavit of the partyPetitioner failed to assign reasonable
cause for the previous non-appearance
before Tribunal-He did not file the written
statement despite sufficient service-In the
present case the petitioner is defendant in
the
claim
petition
filed
by
the
respondents, but the alleged cause for
previous nonappearance has been shown
before the concerned court by a person,
who is not party to the petition-Hence, no
illegality
found
in
the
impugned
orders.(Para 1 to 17)

B. Order IX Rule 7 provides that where the
Court has adjourned the hearing of the
suit ex-parte, and the defendant, at or
before such hearing, appears and assigns
good
cause
for
his
previous
nonappearance, he may, upon such terms as
the court directs as to costs or otherwise,
be heard in answer to the suit as if he had
appeared
on
the
day
fixed
for
his
appearance. Therefore the good cause for
previous nonappearance is to be assigned
by the defendant. (Para 12) (E-6)

## Text

12 All. ICICI Lombard General Insurance Co. Ltd., Lko. Vs. Smt. Rambeti & Ors.
503
Versus The State of Maharashtra, declined to
entertain the petition for a direction for disposal
of bail application in a time bound manner with
the observation that if there is an extra ordinary
urgency, the petitioner can always move the
concerned Bench and if the request is genuine
the concerned Bench will entertain it. The
Hon'ble Supreme Court has also held that since
the High Court and every court in the country
has a huge pendency, the Constitutional Court
should avoid temptation of fixing a time-bound
schedule for disposal of any case before any
court unless the situation is extra ordinary. The
order is reproduced below:-

"Heard the learned counsel appearing
for the petitioner.

His grievance is that his bail
application filed in June, 2023 is not being taken
up by the Bombay High Court.

In every High Court and especially
the bigger High Courts, there are large number
of Bail Petitions filed and therefore, some
delay in disposal of the Bail Petitions is
inevitable. If there is an extra ordinary
urgency, the petitioner can always move the
concerned Bench. We are sure that if the
request is genuine, the concerned Bench will
entertain it.

Subject to what is observed above, we
are not inclined to entertain this petition. The
Writ Petition is accordingly dismissed.

The learned counsel appearing for the
petitioner insists on passing a direction to decide
the case in a time-bound manner.

We are of the view that since every
High Court and every Court in the country has a
huge pendency, the Constitutional Court should
avoid temptation of fixing a time-bound schedule
for disposal of any case before any court unless
the situation is extra ordinary.

Pending
application
also
stands
disposed of."

13. In view of above, this court is of the
view that the petition for a direction for disposal
of a case in time bound manner cannot be
entertained and direction can not be issued by
this court in a routine manner unless there is
some extra ordinary urgency/situation, on
account of which the delay may cause gross
injustice. However in such type of cases also, the
litigant may approach the concerned court,
where the case is pending, giving cogent reasons
showing extraordinary urgency/situation on
account of which his case should be given
precedence over other older cases, who can
consider the same considering as to whether the
case of a applicant/litigant should be given
precedence or not over other older cases pending
in the said court and also the cases which may
have prime cause of urgent disposal, and proceed
accordingly in accordance with law.

14. In view of above, this court is not
inclined to entertain this petition.

15. The petition is dismissed. No order as
to costs.
----------
(2023) 12 ILRA 503
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.12.2023
BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Matters U/A 227 No. 6160 of 2023

ICICI Lombard General Insurance Co. Ltd.,
Lko. ...Petitioner
Versus
Smt. Rambeti & Ors. ...Respondents
504 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Anchal Mishra

Counsel for the Respondents:

A.
Civil
Law
-
U.P.
Motor
Vehicles
Act,1988-Sections 166, 168 & 169-Code of
Civil Procedure, 1908-Order 19 - Rule 3U.P. Motor Vehicle Rules, 1998- Rule 224
A(7)-Tribunal rejected the application on
the
ground
that
application
is
not
supported by affidavit of the partyPetitioner failed to assign reasonable
cause for the previous non-appearance
before Tribunal-He did not file the written
statement despite sufficient service-In the
present case the petitioner is defendant in
the
claim
petition
filed
by
the
respondents, but the alleged cause for
previous nonappearance has been shown
before the concerned court by a person,
who is not party to the petition-Hence, no
illegality
found
in
the
impugned
orders.(Para 1 to 17)

B. Order IX Rule 7 provides that where the
Court has adjourned the hearing of the
suit ex-parte, and the defendant, at or
before such hearing, appears and assigns
good
cause
for
his
previous
nonappearance, he may, upon such terms as
the court directs as to costs or otherwise,
be heard in answer to the suit as if he had
appeared
on
the
day
fixed
for
his
appearance. Therefore the good cause for
previous nonappearance is to be assigned
by the defendant. (Para 12) (E-6)
(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard, Shri Anchal Mishra, learned
counsel for the petitioner.

2. This petition has been filed
challenging the orders dated 08.08.2023
and 04.10.2023 passed in MACP No.219 of
2022;
Rambeti
and
others
Versus
Muneshwar and another by the Motor
Accident Claims Tribunal, Sitapur (here-inafter referred to as the Tribunal).

3. By means of the order dated
08.08.2023, the Tribunal had proceeded exparte recording that the service has been
deemed sufficient on the respondents No.1
and 2 on 28.04.2023 but the written
statement has not been filed and by means
of
the
order
dated
04.10.2023,
the
application for recall of order dated
08.08.2023 filed by the petitioner has been
dismissed on the ground that it is not
supported by the affidavit of the party or
his counsel, who may have clarified the
position.

4. Learned counsel for the petitioner
submits that after receipt of the notice, Shri
S.K.Khurana, Advocate was engaged to
appear on behalf of the petitioner. On
account of mistake of clerk of the counsel
of the petitioner, the file could not be
prepared and vakalatnama could not be
filed. Therefore after coming to know about
the order dated 08.08.2023, an application
for recall of order dated 08.08.2023 was
moved with the affidavit of the Clerk of the
counsel for the petitioner, which has been
dismissed on the ground that he is not a
party, whereas his affidavit could not have
been discarded in view of Order 19 Rule 3
of Civil Procedure Code 1908 (here-in-after
referred to as CPC) and the application
could not have been rejected on this
ground,
therefore
the
petitioner
is
constrained to approach this court. He
submits that the impugned orders are not
sustainable and are liable to be set aside by
this court.

5. Having considered the submissions
of learned counsel for the petitioner, I have
perused the records.

6. As borne out from the pleadings,
the claim petition under Section 166/140 of
the Motor Vehicles Act, 1988 (here-in-after
12 All. ICICI Lombard General Insurance Co. Ltd., Lko. Vs. Smt. Rambeti & Ors.
505
referred to as M.V.Act) bearing MACP
No.219 of 2022 has been filed by the
respondents no.1 to 3. Respondent no.4 in
this petition is respondent no.1 in the Claim
Petition. The notices were issued to the
respondents and the service was deemed
sufficient by means of the order dated
28.04.2023. Despite service of notice on
the petitioner, who is respondent no.2 in the
Claim Petition, he had not appeared and
filed written statement, therefore by means
of the impugned order dated 08.08.2023 the
Tribunal had proceeded ex-parte. The
petitioner filed an application for recall of
the order dated 08.08.2023 alleging therein
that after receipt of the notice Shri
S.K.Khurana, Advocate was engaged but
on account of mistake and confusion of the
clerk of Shri S.K.Khurana, Advocate, the
file could not be prepared and he could not
put in appearance. The application was
filed with the affidavit of the Clerk of Shri
S.K.Khurana, Advocate.

7. The Tribunal, after considering the
application and the affidavit, rejected the
application
on
the
ground
that
the
application is not supported by the affidavit
of the party or his counsel, who may have
clarified the position and the deponent is
not a party in the case, therefore, there is no
good ground to recall the order dated
08.08.2023.

8. The Claim Petition has been filed
under Section 166/140 of the M.V.Act,
1988. Section 169 of the M.V.Act provides
the procedure and powers of Claims
Tribunals. Sub Rule (1) of Section 169
provides that for holding any inquiry under
Section 168, the Claims Tribunal may,
subject to any rules that may be made in
this
behalf,
follow
such
summary
procedure as it thinks fit. Section 176 of the
M.V.Act provides the Power of State
Government to make rules, which is
extracted here-in-below:-

"176.
Power
of
State
Government to make rules.?A State
Government may make rules for the
purpose
of
carrying
into
effect
the
provisions of sections 165 to 174, and in
particular, such rules may provide for all or
any of the following matters, namely:?

(a) the form of application for
claims for compensation and the particulars
it may contain, and the fees, if any, to be
paid in respect of such applications;

(b) the procedure to be followed
by a Claims Tribunal in holding an inquiry
under this Chapter

(c) the powers vested in a Civil
Court which may be exercised by a Claims
Tribunal;

(d) the form and the manner in
which and the fees (if any) on payment of
which an appeal may by preferred against
an award of a Claims Tribunal; and

(e) any other matter which is to
be, or may be, prescribed."

9. In view of Sub Section (c) of
Section 176 above the State Government
may make rules for the purpose of carrying
into effect the provisions of section 165 to
174, and in particular, such rules may
provide the powers vested in the Civil
Court which may be exercised by a Claims
Tribunal.

10. The U.P.Motor Vehicle Rules,
1998 (here-in-after referred to as the Rules)
have been made in exercise of powers
under Sections 28, 38, 65, 95, 96, 107, 111,
506 INDIAN LAW REPORTS ALLAHABAD SERIES
138, 176 and 213 of the M.V.Act read with
Section 21 of the General Clauses Act,
1987 and in supersession of all existing
rules on the subject.

11. Chapter IX of the said Rules
provides about the claims Tribunal. Rule
204-A (7) provides that in case of default in
appearance of a party the previsions of
Order -IX of CPC would apply. Sub Rule
(7) of Rule 204-A of the Rules is extracted
here-in-below:-

"(7) If statements of facts about
the
compensation
claimed,
has
been
furnished by the parties and subsequently
commits
default
in
appearance,
the
provisions of Order-IX of the Code of Civil
Procedure, 1908 would apply."

12. Order IX Rule 7 provides that
where the Court has adjourned the hearing
of the suit ex-parte, and the defendant, at or
before such hearing, appears and assigns
good
cause
for
his
previous
nonappearance, he may, upon such terms as the
court directs as to costs or otherwise, be
heard in answer to the suit as if he had
appeared on the day fixed for his
appearance. Therefore the good cause for
previous non appearance is to be assigned
by the defendant. Order IX Rule 7 CPC is
extracted here-in-below:-

"7. Procedure where defendant
appears on day of adjourned hearing
and assigns good cause for previous nonappearance.-
Where
the
Court
has
adjourned the hearing of the sit ex parte,
and the defendant, at or before such
hearing, appears and assigns good cause for
his previous non-appearance, he may, upon
such terms as the Court directs as to costs
or otherwise, be heard in answer to the suit
as if he had appeared on the day fixed for
his appearance."

13. In the present case the petitioner is
defendant in the claim petition filed by the
respondents, but the alleged cause for
previous non appearance has been shown
before the concerned court by a person,
who is not party to the petition therefore
this court is of the view that there is no
illegality or error in the impugned orders,
whereas the cause is to be assigned by the
defendant.

14. So far as the plea of learned
counsel for the petitioner that the
affidavit of clerk of Shri S.K.Khurana,
Advocate could not have been discarded
in view of Order 19 Rule 3 CPC, this
court is of the view that the contention of
learned for the petitioner is misconceived
and not tenable for the reason that Rule
221 of Chapter IX of the Rules provides
the provisions of the CPC which are
applicable on the Claims Tribunal in
certain cases, which is extracted here-inbelow:-

"221. Code of Civil Procedure to
apply in certain cases- The following
provisions of the First Schedule to the Code
of Civil Procedure, 1908 shall so far as may
be apply to proceedings before the Claims
Tribunal, namely, Rules 9 to 13 and 15 to
30 of Order V; Order IX, Rules 3 to 10 of
Order XIII; Rules 2 to 21 of Order XVI;
Order XVII and Rules 1 to 3 of Order
XXIII."

15. The aforesaid Rule does not
provide for applicability of Rule 19 (3) of
CPC on the Claims Tribunals, therefore, it
cannot be applied in the proceedings before
the Claims Tribunals.
12 All. Pramila Tiwari Vs. Anil Kumar Mishra & Ors.
507

16. In view of above and considering
the over all facts and circumstances of the
case, this court is of the view that
impugned orders have rightly been passed
in accordance with law because the
petitioner has not put in appearance and
filed
the
written
statement
despite
sufficient service and the petitioner, who
is respondent/defendant in the claim
petition has failed to assign good cause
for his previous non appearance before
the Tribunal and the cause assigned by
the registered Clerk of Shri S.K.Khurana,
who is neither party nor the counsel of
the petitioner, could not have been
accepted. Therefore the order dated
04.10.2023 has also rightly been passed
in accordance with law by the Tribunal.
This court does not find any illegality or
error in the impugned orders, which may
call for any interference by this court.
The petition is misconceived and lacks
merit.

17. The petition is, accordingly,
dismissed. No order as to costs.
----------
(2023) 12 ILRA 507
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.11.2023

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE AJIT KUMAR, J.

Matters U/A 227 No. 8279 of 2022 (Civil)

Pramila Tiwari ...Petitioner
Versus
Anil Kumar Mishra & Ors. ...Respondents

Counsel for the Petitioner:
Sri Anand Kumar Singh, Sri Dinesh Kumar
Singh, Sri Rahul Sahai, Sri Vinod Kr.
Pandey
Counsel for the Respondents:
Sri Uday Bhan Mishra, Sri Rituvendra Singh
Nagvanshi, Sri Uady Bhan Mishra

A. Civil Law - Constitution of India,1950Article 227-Indian Registration Act, 1908Section 49-U.P. Zamindari Abolition and
Land
Reforms
Act,1950-Will-ProbateDevolution
of
interest-Registration
of
document-Registration
of
deeds
and
documents put in Entry-6 of Seventh
Schedule,
List
III-Section
49
of
Registration Act were not applicable on
23.08.2004 with regard to a registered
will generally-But bringing in of provision
of registration of a Will by the amendment
of Act of 1950 would definitely bring into
play the effects of non-registration of a
document which was required to be
compulsory registered under Section 49 of
Registration Act-Question of legislative
competence of State in incorporating a
provision which find to be prima facie
repugnant to provisions as contained
under Registration Act in absence of
Presidential assent in Amendment Act No.
27 of 2004-Direction issued.(Para 1 to 17)

The writ petition is allowed. (E-6)

List of Cases cited:
1. Shobhnath Dube, In Re : Late Kashinath
Dube (2015) 128 RD 507

2. Jahan Singh Vs St. of U.P. (2017) 6 ADJ 615

3. Babu Ram Vs Santokh Singh (deceased) thru
his LRs & ors. (2019) 14 SCC 162

(Delivered by Hon'ble Siddhartha Varma, J.
&
Hon'ble Ajit Kumar, J.)

1. Heard learned counsel for the
parties.

2. When a will dated 31.8.2002, after
the death of the testator on 21.2.2016, was
sought to be probated by Probate No.26 of