Sarasa Mahalakshmamma v. Amarapalli Chinna Appanna , Demullu

THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY CIVIL REVISION PETITION No. 2140 OF 2016 ORDER:

This civil revision petition under Article 227 of the Constitution of India is filed challenging the order dated 20-01-2016 in I.A.No. 759 of 2015 in A.S.No. 5 of 2009 on the file of the Court of Senior Civil Judge at Narsipatnam (for short, 'the Appellate Court'), whereby the petition filed by the petitioner under Order VIII Rule 10 of the Code of Civil Procedure (for short, 'C.P.C.') was dismissed. The petitioner filed an application before the Appellate Court under Order VIII Rule 10 of C.P.C. to decree the suit as no written statement was filed by the defendant and the same was dismissed. However, the written statement which is available on record bears the thumb impression of one P.Demudu who is not defendant in the suit. Now, the said order is under challenge on various grounds.

It is necessary to advert to Order VIII Rule 10 of C.P.C. in view of the specific contention raised before this Court. Order VIII Rule 10 of C.P.C. deals with the procedure when party fails to present written statement when called for by Court. According to it, 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 make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up. Taking advantage of this provision and since the written statement available on record does not contain the signature of the defendant, learned counsel for the petitioner requested this Court to pass decree but merely on the ground of failure to file written statement, suit cannot be decreed as held by the Apex Court in

MSM, J.

crp_2140_2016 Balraj Taneja and another Vs. Sunil Madan and another1. In the present case, trial was completed and the suit is dismissed after considering entire material. Therefore, it is difficult to exercise power under Order VIII Rule 10 of C.P.C. to pass decree since the petitioner suffered dismissal order of the suit. In view of the peculiar circumstances, it is left open to the petitioner to raise such plea before the Appellate Court in the pending appeal. With the above observation, the civil revision petition is disposed of. Pending miscellaneous petitions, if any, shall stand closed in consequence. No costs.

_____________________________ M.SATYANARAYANA MURTHY, J.

Date: 30-06-2017.

JSK 1 AIR 1999 SC 3381