1985 Supreme(MP) 753

IN THE HIGH COURT OF MADHYA PRADESH
T.N. Singh, J.
Balkrishan Brothers - Applicant
Vs.
Khandelwal Builders - Respondent
C. R. No. 688 of 1984 (G)
Decided On : 30-11-1985

Headnote:(1) Civil Procedure Code, 1908 – O. 20, R. 3 & S. 2 (9) – unsigned judgment – cannot be deemed to have been pronounced or made effective.

       (2) Civil Procedure Code, 1908 – O. 9, R. 8 & 9, O. 20, R.3 – unsigned judgment – cannot be said to have been passed in terms of O. 9, R. 8 – no scope for application under O. 9, R. 9.

        Short Note

       1. There is much force in the contention of Shri Lahoti that the impugned order passed on 11 – 5 – 1984 at 12.40 p. m. does not merit any interference in my hand. What happened is that earlier that day, an order was recorded by the trial Court to the effect that plaintiff's counsel was absent and also that defendants' counsel was present. It was also recorded that the case was called on for hearing for several times, but none appeared and as such, the suit was being dismissed for default of appearance. On the same date, in the impugned order, which was timed 12.40 p.m., it was recorded that before the order sheet could be signed, plaintiff's counsel Shri Arun Mishra, Advocate appeared. The suit was posted for written statement on 16 – 7 – 1984.

       2. Held : It is clear that the earlier order passed on the same date, not having been signed, was not an effective order and, therefore it was well within the jurisdiction of the Court to proceed with the trial of the suit and for that matter, to fix date for written statement of the defendants. My attention is drawn by the learned counsel to the provisions of Order 20, Rule 3, C. P. C. and to the definition of the term "Judgment" to be found in section 2 (9) thereof. I have no doubt at all that the order passed earlier on the same day, namely, on 11 – 5 – 84 was perported to be a "Judgment" within the meaning of the definition clause and as such, the same not having been, signed in accordance with the requirements of Rule 3, Order 20, it shall not be deemed to be pronounced and made effective. The said order cannot be said to be an order passed in terms of Rule 8 of Order 9, C. P. C. so as to create a vested right in the defendants because the order was not pronounced and made effective. The dismissal of the suit in the circumstances contemplated under Rule 8 evidently deals with valuable rights of the parties and such an order must fulfil the requirements of Rule 3, Order 20. In this connection, it may be stated that when a suit is dismissed in terms of Rule 8, order 9 a remedy is provided for making on application to set aside the order. But, such an order must be valid, effective and impugnable order and when an order is not signed, it cannot be impugnable; it is impugnable and indeed, there would be no scope for all application under Order 9, Rule 9 and the party will be remedileS. Revision dismissed.