2025:HHC:33157 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMPMO No. 582 of 2024 Decided on : 23.09.2025 Machhinder Singh …Petitioner Versus Smt. Jaiwanti and others …Respondents Coram Hon’ble Mr. Justice Ajay Mohan Goel, Judge Whether approved for reporting?1 For the petitioner : Mr. Ajay Kumar, Senior Advocate, with Mr. Maan Singh, Advocate. For the respondents : Mr. Anubhav Chopra, Advocate, for respondent No.1. Mr. Jagdish Thakur, Advocate, for respondent No.2. Mr. M.A. Safee, Advocate, for respondents No.4(a) to 4(f). Mr. Praneet Gupta, Advocate, for respondent No.5. Mr. Rajesh Kumar, Advocate, for respondents no.6 & 7. Ajay Mohan Goel, Judge (Oral) By way of this petition, the petitioner has assailed Order dated 11.06.2024, passed by learned Commissioner, Employee’s Compensation Act, 1923, Lahaul & Spiti at Kullu, 1Whether reporters of the local papers may be allowed to see the judgment? 2 2025:HHC:33157 District Kullu, H.P, in Application No. 104/18, titled Machhinder Singh Vs. Jaiwanti and others, in terms whereof, the application filed by the petitioner, under Section 5 of Limitation Act along- with an application for setting aside exparte order dated 18.08.2017 and award/judgment dated 22.09.2017, in WC No. 24 of 2011, was dismissed. 2. I have heard learned Senior Counsel appearing for the petitioner as well as learned counsel for the respondents and have also carefully gone through the impugned order as well as other documents appended with the petition. 3. Perusal of the record demonstrates that in a Claim Petition filed by Jaiwanti, under Section 22 of the Workman Compensation Act, 1923, learned Commissioner, Employee’s Compensation, Lahaul & Spiti, vide judgment dated 22.09.2017, awarded as sum of Rs.8,73,880/-, along-with interest in favour of the claimant as well as proforma respondents No.6 & 7. The petitioner herein was respondent No.1 before the learned Commissioner and was proceeded against exparte. An application was filed by the petitioner under Order IX, Rule 13 of the Civil Procedure Code (hereinafter 3 2025:HHC:33157 referred to as ‘CPC’) for recall of the exparte judgment. This application was accompanied by another application filed under Section 5 of the Limitation Act, praying for condonation of delay in filing the application for recalling the exparte judgment. 4. It was mentioned in the application filed under Section 5 of the Limitation Act that the applicant had engaged a counsel to defend himself in the proceedings. The applicant could not appear before the learned Court on 18.08.2017 due to ill health and when applicant contacted his counsel on telephone to know the status of the case, he was informed that since the counsel was out of station, he would inform him about the status later on. It was also averred in the application that the applicant thereafter applied for certified copy of the exparte order on 18.08.2017 and judgment and decree dated 22.09.2017. The applicant for the first time came to know on 20.01.2018 that the Court had passed an exparte order dated 18.08.2017 against him and as his absence on 18.08.2017 neither intentional nor deliberate but due to his ill health, therefore, these were sufficient reasons to condone the delay. 5. The application was rejected by the learned 4 2025:HHC:33157 Commissioner, in terms of the order under challenge, by assigning the following reasons:- “7. I have heard the learned counsels for the parties and have perused the relevant record. 8. At the outset, it is pertinent to mention that the grounds on which the applicant has prayed for the condonation of delay are not legally sustainable because the facts on the record of case are contrary to the pleadings of the applicant; and further reflects his conduct. 9. The main case file bearing W.C. Act No. 24/2011 was requisitioned from the record room and perusal of its record shows that the present applicant was the respondent No. 1 in that case was duly represented by the counsel Sh. Rajeev Sharma throughout the proceedings except on 18.08.2017. On said date none had appeared from his side as a result of which he was proceeded ex-parte. At that time, the case was at the last stage of leading rebuttal evidence, and thereafter, the case was listed for arguments. 10. Record further shows that in the said main case, the present applicant who was the respondent No.1 was granted sufficient opportunities, including last opportunity, to file his reply to the petition, but despite of that he had not filed any reply as a result of which, vide Order dated 05.04.2017, the 5 2025:HHC:33157 opportunity to file reply was closed by the Order of the Court. 11. Therefore, in view of the above facts which stand reflected from the record, the contention of the applicant that he was not afforded an opportunity to defend the case is not legally sustainable and liable to be erected. The conduct of the applicant is clearly reflected on the record of the main case. 12. Further, the applicant has not placed on record any medical related document for proving his pleadings that he failed to appear before the Court due to his illness. In the absence of any proof, this contention is also not sustainable. 13. The Court has passed a final order in the main petition dated 22.09.2017 and the present application has been filed by the applicant on 20.01.2018 which clearly shows that there is considerable delay in moving the application and applicant has miserably failed in showing sufficient cause for said delay. Also, he has mentioned in regard of filing of an appeal against the Order passed by the Court, but he has not placed on record any document in support of this pleading as well. 14. Considering the aforesaid facts, this Court find no grounds to allow the present application for above mentioned reasons. Accordingly, the present application under Section 5 of Indian Limitation Act is hereby dismissed. Application 6 2025:HHC:33157 stands disposed of. After due completion it be tagged with the main case file and main case file be sent back to the record room.” 6. In order to ascertain as to whether the findings returned by the learned Commissioner were borne out from the record or not, this Court perused the record of the case. 7. Perusal of the original record demonstrates that in the present case, the evidence of the petitioner was closed on 16.08.2016 and the case was listed for recording the evidence on behalf of respondents No.1 & 2 for 14.10.2016. The petitioner herein was respondent No.1 before the learned Commissioner. On 14.10.2016, no RWs were present and the case was ordered to be listed for 25.10.2016. On 25.10.2016 also, no RWs were present and the case was ordered to be listed for 26.10.2016, on which date the right of respondent No.1 to lead evidence was closed. 8. Now, record demonstrates that this order passed by the learned Commissioner on 26.10.2016 was not challenged and it attained finality. Thereafter, the petitioner was being represented by the counsel off and on. When the case was listed on 16.08.2017, the same was ordered to be listed for 7 2025:HHC:33157 rebuttal evidence for 18.08.2017, on which date none appeared for respondent No.1. Thereafter, he was proceeded against exparte and the case was ultimately decided on 22.09.2017. 9. In light of the fact that on 16.08.2017, when the case was listed for 18.08.2017, the petitioner was represented by a learned counsel, no fault can be attributed to the Court if thereafter the petitioner was proceeded against epxarte and an exparate judgment was pronounced against him because it was the duty of the petitioner as well as his counsel to have pursued the litigation diligently. 10. In light of these facts, this Court finds no infirmity in the order passed by the learned Court below, in terms whereof, an application filed under Section 5 of the Limitation Act, was dismissed, because the delay could not be explained in approaching the Court thereafter for recalling the exparte order. With the passing of the judgment by the learned Commissioner, a right stood accrued upon the claimants before it, which obviously could not have been taken away by setting aside the judgment until and unless the petitioner herein was able to satisfy that his non-appearance before the learned 8 2025:HHC:33157 Commissioner was bona fide. 11. Besides this, in light of the fact that before this, the right of the petitioner herein to lead evidence was closed and this means that no evidence was led by him in support of his contentions, this Court feels that no purpose is going to be served, otherwise also, by allowing this petition. 12. Accordingly, in light of the above observations, this petition is dismissed. Order dated 11.06.2024, passed by learned Commissioner, Employee’s Compensation Act, 1923, Lahaul & Spiti at Kullu, District Kullu, H.P, in Application No. 104/18, titled Machhinder Singh Vs. Jaiwanti and others, is upheld. Pending miscellaneous application(s), if any, also stand disposed of accordingly. (Ajay Mohan Goel) Judge September 23, 2025 (Shivank Thakur)