Municipal Corporation of Delhi v. Mamta Kumari & Others

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes INDERMEET KAUR, J. (Oral)

1 This appeal has impugned the order dated 21.11.2009 vide which it had dismissed the application of the petitioner/MCD under Order 9 Rule 13 of the Code Civil Procedure (hereinafter referred to as the ‘Code’) which application had been filed for setting aside the Award dated 27.09.2007.

2 Record shows that on 17.04.2004, the deceased Sanjay 2011:DHC:4870 Kumar had suffered an accident at Khanpur Road pursuant to the truck of the MCD which was being driven in a rash and negligent manner by its driver; as a result of this impact, the deceased sustained grievous injuries pursuant to which he succumbed to the same. Claim petition was filed by his widow and minor children. The respondent No. 1 did not contest the claim. Respondent No. 1 was deleted from the array of the respondents on 18.08.2004; the defence of respondent No. 2/MCD was struck off on 30.03.2005 as they have not filed their written statement; cost had also not been paid after the setting aside of the ex-parte order dated 18.08.2004. This clearly shows the lackadaisical and casual attitude of the Department. The plaintiff had examined five witnesses. The defendant had not lead any evidence. Keeping in view the entirety of the evidence adduced by the petitioner, the award in the sum of Rs.11,38,000/- had been awarded in favour of the petitioner. Thereafter an application under Order 9 Rule 13 of the Code had been filed which (as noted supra) was dismissed on 21.11.2009. The Court had correctly noted that the provisions of Order 9 Rule 13 of the Code are not applicable; it is not the case of the respondent/MCD that they had not be served or were prevented by sufficient cause from appearing or contesting the proceedings; in fact the ex-parte order was passed against them had been set aside subject to payment of cost but even then the cost was not paid; written statement was not filed in time; the court was constrained to strike off the defence of the respondent/MCD.

3 In these circumstances, the application under Order 9 Rule 13 of the Code was not maintainable. The respondent/MCD had full knowledge of the proceedings but for reasons best known to it, it chose not to contest them. Record shows that the impugned Award/judgment in no manner suffers from any infirmity; it is based on the deposition of the witnesses and strictly in conformity with their testimony. Appeal is without any merit.

INDERMEET KAUR, J. SEPTEMBER 21, 2011 a