BIHAR STATE ELECTRICITY BOARD Vs. NEW GOBINDPUR COAL CO PVT LTD

JUDGEMENT

(1.) This application in revision is directed against the order of the learned Third Additional Subordinate Judge of Dhanbad dated the 4th June, 1971, declining to accept the written statement which the petitioner had filed in Title Suit No. 99 of 1969, wherein it was impleaded as defendant No. 1. The relevant facts are as follows: The suit was instituted by the plaintiffs (Opposite Party Nos. 1 and 2) on the 21st July, 1969. On the same day the plaint was admitted and summonses were ordered to be issued to the defendants fixing the 26th August, 1969, for settlement of issues. Further, on the same day, upon a petition of the plaintiffs, the defendants were called upon to show cause why an ad interim injunction be not issued against them, and in the meantime an order of ad interim injunction was passed. The summonses as also the service report of the notices in the injunc- tion matter were received after service and the order of ad interim injunction was confirmed on the 1st August, 1969. Until then the defendants had not appeared, which they did on the 26th August, 1969. On the 26th August, 1969, the Court fixed 26th September, 1969, as the date for filing of the written statement and for settlement of issues. On the 26th September, 1969, at the instance of the defendants, the Court fixed 9th December, 1969, for filing written statement and for settlement of issues. On the 9th December, 1969, the defendants prayed for time to file written statement, which was extended to the 20th January, 1970, on payment of Rs. 8/- as cost. The time was further extended to the 10th March, 1970, on payment of Rs. 10/- as cost. On the 10th March, 1970, the defendants prayed for further time to file their written statement, and that was allowed until the 22nd April, 1970, on payment of Rs. 12/- as cost. On the 22nd April, 1970, the time for filing the written statement was further extended to the 5th June, 1970, on payment of Rs. 12/- as cost. On the 5th June, 1970, the defendants again applied for time for filing their written statement, upon which the Court passed the following order:

(2.) The short point taken by Mr. Ganesh Prasad Jaiswal appearing on behalf of the petitioner is that the trial Court had no jurisdiction to decline to accept the written statement which the defendants had filed on the 4th June. 1971. In support of his contention learned counsel relied upon Rule 1 of Order VIII of the Code of Civil Procedure, which is in the following terms:

(3.) The expression "the first hearing" was explained by the Supreme Court in Sangram Singh v. Election Tribunal, Kotah, AIR 1955 SC 425. At p. 431 of the report it has been pointed out that the first hearing is either for the settlement of issues or for final hearing. If it is only for the settlement of issues, then the Court cannot pass an 'ex parte' decree on that date because of the proviso to Order 15, Rule 3 (1) ..... On the other hand, if it is for final hearing, an 'ex parte' decree can be passed .....