Point of Law: 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 make such order in relation to the suit as it thinks fit and on pronouncement of such judgment a decree shall be drawn up

ORDER :

1. Defendant No. 1 in C.O.S. No. 17 of 2018 on the file of the Court of learned Special Judge for Trial and Disposal of Commercial Disputes, Visakhapatnam, is the petitioner in the present revision, filed under Article 227 of the Constitution of India. In the present revision petition, challenge is to the order dated 22-08-2019 passed by the Special Court in I.A. No. 101 of 2019. By way of the said order, the learned Judge dismissed I.A. No. 101 of 2019, filed by the petitioner herein to set aside the order dated 07-02-2019, setting defendant No. 1 ex-parte.

2. Respondent No. 1 herein instituted the said C.O.S. No. 17 of 2018 for recovery of a sum of Rs. 6,56,64,661/- with subsequent compound interest @ 10.5% p.a. on Rs. 1,39,20,192/- from the date of filing the suit till realization. In the said suit, summons came to be issued by the Court below and, according to the petitioner, defendant Nos. 1 and 2 received the summons on 24-01-2019, wherein the date of posting of the suit was indicated as 07-02-2019. According to the petitioner, they instructed their counsel at Visakhapatnam to offer to file vakalat and learned counsel by mistake, instead of offering vakalat on behalf of defendant Nos. 1 and 3, offered to file vakalat for defendant No. 2 on 07-02-2019 and the Court below passed an order on the said date, setting defendant No. 1 ex-parte. Thereafter, the petitioner filed I.A. No. 101 of 2019 on 16-04-2019, praying the Court to set aside the said order so as to enable it to participate in the proceedings. The plaintiff contested the said I.A. by filing counter and the Court below dismissed the said I.A. on the grounds that the written statement was attempted to be filed beyond 120 days and that instead of filing affidavit of the party, affidavit of the Advocate was filed.

3. This revision challenges the validity and legal sustainability of the said order passed by the learned Special Judge, dismissing I.A. No. 101 of 2019.

4. Heard Sri. Avinash Desai, learned counsel for the petitioner and Sri. Srujan Vegi, learned counsel for respondent No. 1-plaintiff, apart from perusing the entire material available on record.

5. It is contended by learned counsel for the petitioner that the impugned order is highly erroneous and contrary to law besides being opposed to the very spirit and object of the provisions of Order IX Rule 7 of the Code of Civil Procedure (for short C.P.C.) that in the absence of service of plaint copy along with summons, the limitation for filing written statement ought to have been computed from the date of receipt of plaint and the enclosed documents; that the filing of the affidavit deposed by learned counsel would be sufficient compliance under Rule 54 of Civil Rules of Practice; and that the dismissal of the application on the ground that the supporting affidavit was not deposed by the party is not tenable in the eye of law. To bolster his submissions and contentions, learned counsel for the petitioner places reliance on G. Krimana Murthy vs. Hemalatha Chit Funds Private Limited and Others, 2006 (4) ALD 42 (D.B.) and New India Assurance Company Limited vs. Hilli Multipurpose Cold Storage Private Limited, (2020) 5 SCC 757.

6. On the contrary, totally supporting the order under challenge, learned counsel for respondent No. 1-plaintiff strenuously contends that there is no error nor there exists any infirmity in the impugned order and, in the absence of the same, the questioned order is not amenable for any judicial review under Article 227 of the Constitution of India; that the limitation for filing written statement begins to run from the date of service of summons as per Order V Rule 1 of C.P.C. and not from any date posterior to the said date, as such, the impugned order cannot be faulted; that the dismissal of the application on the ground that the supporting affidavit was not signed by the party a