Neutral Citation No. - 2025:AHC:144770 Court No. - 9 Case :- WRIT - C No. - 27816 of 2013 Petitioner :- Anuradha Tiwari And 4 Others Respondent :- M.A.C.T./District Judge And Another Counsel for Petitioner :- Chetan Chatterjee,Durga Singh,Nand Lal Pandey,Rakesh Pathak,Suyash Pandey Counsel for Respondent :- Jitendra Kumar Hon'ble Manish Kumar Nigam,J. Ref: C. M. Delay Condonation Application No. 20 of 2024 Ref: C. M. Substitution Application No. 21 of 2024 1. Cause shown is sufficient. 2. Delay in filing the substitution application is condoned. 3. This substitution application has been filed for substituting the heirs of deceased petitioner no. 4 who is the father of the deceased and is represented by other petitioners. 4. The delay condonation application as well as substitution application application, is allowed. Order on petition 1. Heard learned counsel for the parties and perused the record. 2. This petition has been filed challenging the order dated 31.10.2012 passed by Motor Accident Claims Tribunal, Ballia rejecting the application filed by the petitioner filed under Order 9 Rule 9 C.P.C. for restoring the claim petition no. 75 of 2008. 3. Brief facts of the case are that the husband of the petitioner no. 1, father of minor petitioner nos. 2 & 3 and son of petitioner nos. 4 & 5 died in a road accident on 23.12.2007 involving vehicle No. WB 37A 0466 belonging to respondent no. 2. The claim petition was dismissed for want of prosecution by order dated 06.10.2008. A restoration application along with application under Section 5 of Limitation Act has been filed by the petitioner inter-alia on the ground that after the death of her husband, in order to meet her both ends, the petitioner no. 1 shifted to Varanasi in connection to his employment. The claimant nos. 2 & 3 minor children and claimant nos. 4 & 5 are the parents of the deceased who are senior citizen, therefore, the petitioner no. 1, requested Shri B. K. Chaturvedi, Advocate to do pairvy of the case as it was not possible for the petitioner to attend the case regularly in court. Because of negligence of the counsel, the said claim petition was dismissed in default and when the petition came to know about the said dismissal, she has filed an application for recalling the order dismissing the claim petition in default. An objection has been filed by the opposite party to the application under Section 5 as well as to the application under Order 9 Rule 9 C.P.C. which has been filed along with counter affidavit by the learned counsel appearing for the respondents. The trial court, by its judgment and order dated 31.10.2012 has rejected the application filed by the petitioner, hence, this petition. 4. Contention of the learned counsel for the petitioner is that the Motor Accident Claims Tribunal, Ballia has not considered the explanation offered by the petitioner in support of his application and has only recorded a finding that there is no good ground shown for not doing pairvy of the case and has rejected the application. It has been further submitted by learned counsel for the petitioner that in the objections filed by the respondents, there is no specific denial of the grounds taken by the petitioner and denial is general and vague. 5. Per contra, learned counsel appearing for respondents has submitted that the application for recalling the order of dismissing the claim petition for want of prosecution was filed after a delay of more than one year without there being any proper explanation of the absence. 6. After considering the arguments advanced by learned counsels for both the side as well application filed by the petitioner and objection filed by the respondents, I am of the considered opinion that the petitioner has explained the reason for her absence as she went Varanasi in connection with his employment and instructed the counsel to do pairvy in the matter and when she returned her village and came to know about the order of dismissal, she filed an application for restoration. This fact has not been specifically denied by the respondents in their objections. The Tribunal has not recorded any finding on the grounds taken by the petitioner and has rejected the application of the petitioner only on the ground that there is no reasonable explanation for not doing pairvy. In my view, the order passed by the tribunal is liable to be set-aside. 7. In view of the above, the order dated 31.10.2012 passed by Motor Accident Claims Tribunal, Ballia rejecting the application filed by the petitioner filed under Order 9 Rule 9 C.P.C. for restoring the claim petition no. 75 of 2008, is hereby set-aside. 8. Since, the claim petition is of the year 2008 and the accident has taken place in the year 2007, in my opinion, the grounds taken by the petitioner appears to be reasonable, therefore, I am not remanding the matter and allowing the application filed by the petitioner for setting-aside the order of dismissal dated 06.10.2008, in exercise of powers under Article 227 of Constitution of India. The order dated 06.10.2008 passed by Motor Accident Claims Tribunal, Ballia, is hereby set-aside. 9. It is further provided that the Motor Accident Claims Tribunal, Ballia shall consider and decide the claim petition, in accordance with law after providing opportunity to the parties concerned. 10. With the aforesaid directions, this petition stands disposed of. Order Date :- 22.8.2025 Ved Prakash (Manish Kumar Nigam,J.) Digitally signed by :- VED PRAKASH SHARMA High Court of Judicature at Allahabad