1996 Supreme(MP) 1035

IN THE HIGH COURT OF MADHYA PRADESH
S.K. Dubey, Usha Shukla, JJ.
Aziz Qureshi - Appellant
Vs.
M.P. Rajya Matsya Nigam - Respondent
F.A. No. 161 of 1989 (J)
Decided On : 01-08-1996

Headnote:(1) Civil Procedure Code, 1908 – O.8 R.10, O.6 R.5 and O.7 R.11 – applications of defendant under O.6 R.5 and O.7 R.11 pending – judgment should not be pronounced under O.8 R.10 – real opportunity of fighting out the case should be given.

       (2) Court-fees Act, 1870 – S.13 – first appeal remanded for fresh trial – Court fees should be refunded.

        Short Note

       This is an appeal under section 26 of the Code of Civil Procedure, 1908 against judgment and decree passed in Civil Suit No. 10 – B of 1987 dated 6.9.1989 passed by the 1st Additional District Judge to the Court of District Judge, Bhopal in a suit instituted by the respondent for recovery of Rs. 4,40,408.03 p. Summons was issued to the appellant to appear and answer the claim, the appellant appeared and filed two applications – one under Order 7 Rule 11 CPC and another under Order 6 Rule 5 CPC respectively on 16.5.1988 and 16.6.1988. Respondent filed replies to the applications. The respondent also filed an application under Order 8 Rule 10 CPC which was rejected on 28.7.1989 and the case was adjourned to 6.9.1989, for filing written statement. On 6.9.1989, the appellant prayed for time to file written statement but the prayer was refused and the judgment was pronounced against the appellant/defendant under Order 8 Rule 10 CPC and a decree was drawn up.

       2. Learned counsel for the appellant contended that the applications under Order 6 Rule 5 CPC and Order 7 Rule 11 CPC remained undecided and, therefore, the appellant did not file written statement, and for that, appellant sought time to file an application. Unfortunately, the application could not be filed which led the Court to proceed under Order 8 Rule 10 CPC.

       3. Learned counsel for the respondent supported the judgment and decree of the trial Court and submitted that from the order – sheet dated 6.9.1989, it would be apparent that number of opportunities were afforded to the appellant to file written statement but the appellant, with a view to protract the trial, did not file written statement and, therefore, an application was filed under Order 8 Rule 10 CPC which was earlier dismissed. But when the case was fixed for filing the written statement, again the appellant failed to file the written statement on the date fixed, hence the trial Court rightly pronounced the judgment and passed the decree under Order 8 Rule 10 CPC on the same day.

       4. Having heared the learned counsel for the parties and on going through the record, we are of the opinion that the trial Court committed an error in pronouncing judgment and decree by applying the provisions of Order 8 Rule 10 CPC, when admittedly applications under Order 8 Rule 5 and Order 7 Rule 11 were pending for disposal. Order 8 Rule 10 is stringent provision. Of course, the Court may take such drastic action. However, the provisions are not penal and are designed to facilitate justice. A Court has to take action in the circumstances of each case, the endeavour should be made to avoid decisions and to offer litigants a real opportunity of fighting out their cases fairly and squarely.

       5. True, the suit was pending since 1987 and case was adjourned from time to time for filing the written statement but the facts remain, that the applications of the appellant under Order 7 Rule 11 and Order 6 Rule 5 ref=act:10444>CPC remained undisposed of. In such circumstances the appellant cannot be said to have “failed to present” the written statement. It is the rule of practice that whenever, an application is filed by a parties, it should be disposed of forthwith after hearing the parties. Therefore, we are of the view that the exercise of the power under Order 8 Rule 10 CPC was not proper in the facts of this case. Hence, the judgment and decree cannot be maintained and the case has to go back to the trial Court for deciding it afresh in accordance with law.

       6. As the suit is pending since 1987 we allow an opportunity to the appellant to file written statement on 30.8.1996, on the condition of payment of costs of Rs. 1,000/ – . After written statement is filed, the trial Court shall proceed to decide the suit expeditiously as far as possible within an outer limit of six months from the date fixed by us, for which no notice shall be issued as parties have been noticed here through their counsel.

       7. As the case is being remanded, for its decision on merits as provided under Order 41 Rule 23 CPC, we direct that the Court fee paid on memorandum of appeal shall be refunded to appellant under section 13 of Court Fees Act, for that we place reliance on the decision of the Supreme Court in case of State of U.P. v. Chandra Bhushan Mishra, AIR 1980 SC 591. The registry shall grant a certificate, authorising the appellant to receive back from the Collector the full amount of fee paid on the memorandum of appeal.

       8. In the result, the appeal is allowed the judgment and decree of the trial Court is set aside, the case is remitted to the trial Court to decide the suit in accordance with law. Record of the case with the copy of this order be sent post – haste to the trial Court so as to reach on or before the date fixed. Cost of this appeal is as incurred.