- (1.) Challenge in the present revision petition by the defendantcompany is to the order dated 17.09.2014 (Annexure P-1) whereby, the Additional Civil Judge, (Sr. Divn.), Chandigarh has allowed the application for restoration of the suit of the plaintiff-respondent subject to payment of Rs. 5,000/- as costs.
(2.) Counsel for the petitioner-insurance company has vehemently argued that not only the application was barred by limitation but the conduct of the plaintiff-respondent was such that the suit should not have been restored as it was lax in prosecuting the same and the same had been pending since 04.08.2003.
(3.) A perusal of the paper book would go on to show that the respondent-plaintiff had filed civil suit for recovery of Rs. 1,40,82,900/- with interest which is on account of the repudiation of the insurance claim on account of a fire breaking down in the godowns. The matter was pending for long and eventually, the evidence of the respondent-plaintiff was closed on 16.08.2011. The evidence of the petitioner-defendant was submitted on 19.09.2011 and it was fixed for cross examination of DW-2 on 16.11.2011, subject to the last and final opportunity. On the said date, the witnesses Rakesh Kumar and Balwinder Singh were present and eventually, on nonappearance on behalf of the plaintiff, the suit was dismissed in default under Order 9 Rule 8 CPC. The application for restoration was filed on 01.02.2012 and the plea taken was that the earlier counsel namely Sh. Ashok Kumar Sharma had disclosed that the next date of hearing was 16.01.2012 and not 16.11.2011 and on the said date, which was the date of knowledge, the plaintiff came to know that the suit had been dismissed in default on the earlier date. The file was taken back from the earlier counsel and handed over to the new counsel through whom the application was filed and accordingly, the non-appearance of the plaintiff was not intentional neither deliberate and accordingly the application was filed for restoration on the said ground that no prejudice would be caused to the defendantcompany. The affidavit of the Director of the company was filed alongwith the application in support of the averments.;