G. M. LODHA, J. - (1.) THIS revision petition arises out of the order dated 1-6-74 of Additional Munsif and Judicial Magistrate, Hindaun ordering that the proceedings be taken ex-parte against the petitioner for failure of filing written statement.
(2.) MR. R. P. Goyal, the learned counsel for the petitioner has argued that the lower court should not have taken a drastic view and restrained it self from directing the proceedings to be taken ex-parte when the defendant pointed out to the court that the copy of the plaint given to the defendant was defective one. MR. Goyal's contention is that it would have been in the interest of justice to grant time directing the plaintiff for filing the legible copy. According to MR. Goyal, great in-justice has been done, as he has been debarred simply on the ground that he insisted for getting legible and correct copy. It is also submitted that such orders could not have been passed under Order 8, Rule 10 C. P. C. He relies open the judgment reported in A. I. R. 1936 Bombay P. 470. The learned counsel for the respondents submitted that the defendant was consistently avoiding to file the written statement. On 15-5-74 the court has expressly held that copy of the plaint has already been served on the defendant and additional copies were given on 23-5-74. Two adjournments were given with costs but inspite of that, defendant failed to file the written statement. It is submitted that such dilatory tactics of the defendant should not be encouraged and specially so far as the exercise of revisional jurisdiction is concerned, there is absolutely no ground for interference. It is also submitted that an ex-parte order can be passed under order 5 rule 9 C. P. C. and also under Order 17, rule 3 C. P. C. I have given thought ful consideration to the respective contentions of both the parties and also have carefully gone through the order dated 1-6-74 It appears from the impugned order that on 15-5-74 the lower court has come to the conclusion that a copy of the plaint has already been given to the defendant. This finding was enough for insisting on filing of the written statement without any further adjournment. The lower court in all fairness allowed two adjournments on costs and further directed that the additional copy which was available on the court's record also be given to the defendant. If inspite of all this, the defendant did not file written statement, he did it as his own peril. Admittedly two adjournments were granted and the defendant should have filed the written statement. I am therefore of the view that the trial court was perfectly justified in rejecting the prayer of defendant for further adjournment. The ground for seeking adjournment that the additional copy given to him was not legible and contained certain omissions, appeared to be a lame excuse and frivolous pretext to prolong litigation. The other branch of the submission of Mr. Goyal is that even though written statement was not filed and the court did not think it proper to grant the adjournment for the same, no order for taking ex-parte proceedings could have been given under Order 8, rule 10 C. P. C. or any other Law. This contention is well founded and deserves to be accepted.
(3.) IT would be convenient to consider order 8, rule 1 C. P. C. and Rule 10 C. P. C. at this stage. Order, 8 rule 10 C. P. C. reads as under: - "r. 10 Procedure when party fails to present written statement called for by Court. Where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the court, as the case may be, the Court shall pronounce judgment against him or made such order in relation to the suit as it thinks fit and on the pronouncement of such judgment, a decree shall be drown up. " Order 8, rule 10 C. P. C. fails to specify what type of order can be passed. It only says that if written statement is not filed within the time, the court can pronounce the Judgment against the defendant or pass any such order in relation to the suit as it thinks fit. The crucial question, which requires determination in this case is whether the order directing that the proceedings should be ex-parte against the defendant, is contemplated and covered by the various orders which can be passed under Order 8, Rule 10 C. P. C. by the court. ;