UNITED INDIA INSURANCE CO. LTD Vs. SUSHMA SOOD

JUDGEMENT

(1.) This appeal purportedly under Order XLIII, Rule (d) of Code of Civil Procedure (for short 'CPC') is directed against the order dated 29.10.2018 passed by the Additional District Judge, Jammu (hereinafter referred to as the 'trial Court') on an application of the appellant-defendant No.1 filed under Order IX Rule 13 of CPC for setting aside ex parte judgment and decree dated 06.02.2014 passed in a Suit for Recovery titled 'Sushma Sood and another v. United India Insurance Company and another'. By virtue of the order impugned (supra), the application of the appellant-defendants for setting aside ex parte judgment and decree has been rejected.

(2.) Before adverting to the grounds of challenge urged by the appellant- defendant to assail the judgment and decree impugned, a brief advertence to the factual antecedents, as is relevant to the disposal of this appeal, would be desirable.

(3.) Respondent Nos. 1 and 2-plaintiffs filed a Suit for Recovery of Rs.35,93,000/- against the appellant-defendant before the trial Court. The suit was primarily for recovery of insurance claim pertaining to fire loss to plaintiff No.2 in the night intervening 26 th and 27th of January 2004.The suit was contested by the appellant-defendant who was duly represented by Sh. R.P.Jamwal, Advocate. A written statement was filed by the appellant- defendant on 02.11.2007. On 24.12.2007, an application was filed by respondents-plaintiffs for grant of preliminary decree. The objections were filed by the appellant-defendant on 06.02.2008 and the trial Court vide its order dated 11.03.2008 passed the preliminary decree. Issues in the suit were struck by the trial Court on 20.11.2009 and parties were given fifteen days time to file the list of witnesses. The respondents-plaintiffs commenced their evidence on 20th August, 2010 when the statement of respondent No.1- plaintiff Sushma Sood was recorded. The evidence of the respondents- plaintiffs was closed by the trial Court on 31.01.2013 and a direction was issued to the appellant-defendant to adduce their evidence. It may be noted that the appellant-defendants had not filed any list of witnesses and, therefore, sought time to produce the witnesses on their own. They were given several opportunities for the purpose and as per the record, last opportunity to lead evidence was granted to the appellant-defendants on 1st October, 2013. The appellant-defendants were given two more opportunities as is apparent from the orders of the trial Court dated 08.11.2013 and 26.11.2013. On failure of the appellant-defendants to lead their evidence, the trial Court vide its order dated 26.11.2013 closed the evidence of the appellant-defendants and the suit was set down for final arguments. The suit was thereafter adjourned on three occasions i.e, 02.12.2013, 28.12.2013 and 18.01.2014, but the arguments in the matter were not addressed and finally, the trial Court fixed the suit for final arguments on 30.01.2014. The appellant-defendant failed to appear and address the arguments on the said date and resultantly, the trial Court initiated ex parte proceedings against the appellant-defendant and heard the matter in exparte. The suit was decreed in exparte on 06.02.2014. The appellant-defendants filed a belated application under Order IV Rule 13 of CPC for setting aside the ex parte judgment and decree on 31st October 2014. The said application was accompanied by an application under Section 5 of the Limitation Act for condonation of delay which application was allowed by the trial Court vide its order dated 07.11.2017.