A trial court cannot forfeit the right of a defendant to file a written statement even though the written statement has not been filed in spite of the orders of the court at or before the first hearing.

( 1 ) THIS revision petition is filed against the order of the Munsif Magistrate, Khammameth, refusing to receive the written statement filed by defendant No. 5 as, according to the learned Munsif Magistrate, the right of that defendant to file the written statement has been forfeited on 2-3-1957.

( 2 ) A few facts need be mentioned for formulating the question that arises for determination in this revision petition. The petitioner is the 5th defendant in O. S. No. 74/1 of 1954 on the file of the Munsif Magistrate, Khammameth. This defendant was not originally made party to the suit. The "b" diary contains under date 1-8-1956 that the petition of Tata Seetha Ramiah dated 17-11-1955 for impleading him has already been granted and it was ordered that the case be put up on 31-8-1958. The next note in the "b" diary is of 3-1-1957. It is noted thereunder that the advocate of defendant has objected, as the copies of the suit documents have not been given and the pleader for the plaintiff has been directed to give the copies. The suit thereafter stood adjourned to 29-11-1957, and on that date the court noted that there was compliance by the plaintiffs pleader with the previous order of the court and so the file is ordered to be put up on 13-2-1957 for written, statement. The next entry in the "b" diary is only of 2-3-1957 and it is in the following terms:"the plaintiff and the defendants Nos. 1 to 4 and 5 are present through their pleaders. The defendant No. 5 in spite of SO many opportunities, failed to comply with the order of the court for submitting the written statement. Hence, his right is forfeited. Put up file on 26-3-1957 for framing issues".

( 3 ) THEREAFTER, the application against which the present revision petition is filed was preferred by the 5th defendant for setting aside the above order forfeiting his right to file the written statement. The 5th defendant also seems to have filed along with that application his written statement. Thereafter on 12-4-1957 the case was posted to 25-4-1957 for arguments of defendant No. 5 and after two or three adjournments the order in question was passed on 7-9-1957.

( 4 ) THE learned Munsif Magistrate held the view that though the 5th defendant s right to file the written statement has been forfeited, he can still appear in the suit as he cannot be declared ex parte and produce evidence and thus make out his case, if necessary. He believed that he is however prohibited to entertain the written statement after the order of forfeiture passed by that court. The learned Munsif Magistrate also held that the powers under Section 151 C. P. C. to reopen the matter cannot be exercised as, according to him, this is also prohibited, In this view, he dismissed the application of the 5th defendant (petitioner herein ).

( 5 ) THIS takes me to the consideration of the question whether having regard to the provisions of the Civil Procedure Code a trial Court can forfeit the right of the defendant to file a written statement. At the outset it is necessary to notice that the Lower Court, somehow, felt that because some opportunities available to the defendant before the first hearing were not availed of to file the written statement the court can place an embargo on the defendant and prevent him from filing a written statement. But in my view, there is no warrant in the Code of Civil Procedure for a court to assume such powers. Therefore for a correct appraisal of the exact legal position in situations such as these, the relevant provisions of the Code have to be examined.

( 6 ) BEFORE adverting to the specific rules, it is well to recall to mind the force of the observations of the Supreme Court contained in Sangram Singh v. Election Tribunal Kotah, (S) AIR 1955 SC 425 which are meant for guidance of courts. Referring to the interpretation of the Code of Civil Procedure, Bose, J. speaking for the Supreme Court said at page 429 :"it is "procedure", something designed to facilitate just