UNION OF INDIA Vs. SURJAN SINGH

JUDGEMENT

(1.) This appeal under Order 43, Rule 1 of the Code of Civil Procedure (in short 'C.P.C.') is directed against the order dated 17-7-2000 passed by the Civil Judge (Senior Division), Rayagada, in M.J.C. No. 30 of 1997 rejecting an application under Order 9, Rule 13 read with Section 151 of the C.P.C. praying for setting aside the ex parte decree passed against defendant No.1. i.e., the present appellant, in Money Suit No. 42 of 1995.

(2.) The case of the appellant, as it transpires from the facts narrated in the appeal memo, as well as the impugned order and from the submissions made by the learned counsel for the parties, is that respondent No. 1 herein filed the aforesaid Money Suit No.42 of 1995 in the Court of the CivilJudge (S.D.). Rayagada. against defendant No.1 the General Manager, South Eastern Railways, Calcutta, and defendant No. 2, one of the employees of defendant No.1, claiming compensation of Rs. 3,10,000/- for the loss sustained by him in a railway accident. The plaintiff-respondent No. 1, who was the owner-cum-driver of the truck bearing registration No. OSS 5457, was carrying on the business of transportation of goods. While transporting coal of one A.K. Tiwari in his truck from Brajarajnagar to Rayagada, in the early morning of 12-4-1993 the plaintiff after crossing Bissam Cuttack found that the Level Crossing Gate at K.M. No. 308/ 2 was open and the road was clear for vehicular taffic for which he approached the railway track but at that point of time the Link Express train which was coming from Visakhapatnam towards Raipur hit the truck and smashed the same causing bodily injuries to the plaintiff as well as other occupants of the truck, one of whom having died later on. At this stage, it may be stated that along with the plaint the plaintiff-respondent No. 1 had filed an application under Order 33, Rule 1 C.P.C. praying to allow him to sue as an indigent person, which was registered as M.J.C. No. 5, of 1994, wherein the present appellant was arrayed as opposite party No. 2. That M.J.C. application was allowed by order dated 25-10-1995 and on the same day the plaint was registered.

(3.) In the suit, as defendant No. 1-appellant did not appear he was set ex parte and the suit was ultimately decreed ex parte by judgment dated 10-3-1997. Thereafter defendant No. 1 filed an application under Order 9, Rule 13 read with Section 151 of the C.P.C. for setting aside the ex parte decree, which was registered as M.J.C. No. 30 of 1997. Along with the said application, defendant No. 1 also filed an application under section 5 of the Limitation Act praying to condone the delay in filing the application for setting aside the ex parte decree. The trial Court by order dated 17-7-2000 dismissed both the applications. Against this order, defendant No. 1 has come up with the present appeal.