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Vinayak Shreedhar Kulkarni Vs. Chintaman Vaman Kulkarni - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberLetters Patent Appeal No. 11 of 1937
Judge
Reported inAIR1938Bom470; (1938)40BOMLR972
AppellantVinayak Shreedhar Kulkarni
RespondentChintaman Vaman Kulkarni
DispositionAppeal dismissed
Excerpt:
.....at hearing, from addressing court-ex parte decree-whether decree could be set aside-position where written statement not put in- direction to be made in such case.;a party to a suit is not bound to put in a written statement ; if he does not do so, he is taken to admit the allegations in the plaint, but he is entitled to appear and submit any argument open to him on the plaint, for instance that the plaint discloses no cause of action, or that the claim is time-barred. a judge, therefore, is not justified in ordering a case to be heard ex parte, where no written statement is put in. in such a case, the proper direction to make would be, to fix the case for hearing in default of written statement.;the defendant was directed to file a written statement by a certain date. he did not do so..........to have avoided service for about a year, but he was eventually served, and was directed to file a written statement by june 12, 1935. he did not file a written statement, but applied for further time, putting in a doctor's certificate saying that he was ill. the learned judge rejected that application, pointing out that although the defendant might be ill there was no reason why he should not have given instructions to his pleader on which a written statement could have been filed. the learned judge thereupon made an order, ' case is fixed for hearing ex parte.' it is not uncommon to make an order of that nature where no written statement is put in, but such an order cannot be justified. the judge should have directed that the case be fixed for hearing in default of written statement. a.....
Judgment:

John Beaumont, Kt., C.J.

1. This is an appeal under the Letters Patent from a decision of Mr. Justice Macklin summarily dismissing the defendant's appeal. The plaintiff is a minor suing by his next friend to enforce an oral agreement for the payment of money. The defendant seems to have avoided service for about a year, but he was eventually served, and was directed to file a written statement by June 12, 1935. He did not file a written statement, but applied for further time, putting in a doctor's certificate saying that he was ill. The learned Judge rejected that application, pointing out that although the defendant might be ill there was no reason why he should not have given instructions to his pleader on which a written statement could have been filed. The learned Judge thereupon made an order, ' Case is fixed for hearing ex parte.' It is not uncommon to make an order of that nature where no written statement is put in, but such an order cannot be justified. The Judge should have directed that the case be fixed for hearing in default of written statement. A party is not bound to put in a written statement; if he does not do so, he is taken to admit the allegations in the plaint, but he is entitled to appear and submit any argument open to him on the plaint, for instance that the plaint discloses no cause of action, or that the claim is time-barred. However the order in this case seems to have been treated as meaning no more than that the suit would be heard in the absence of a written statement, because when the suit was called on, the defendant's pleader was present, and he put in an application that he might be allowed to withdraw. No order was made upon that, but it is quite clear that neither the defendant nor his pleader was in any way prevented from addressing the Court. The learned Judge heard evidence on behalf of the plaintiff, and passed a decree, and then an application was made under Order IX, Rule 13, to have the decree set aside. That application was rejected, and from that order an appeal was summarily dismissed by Mr. Justice Macklin, from whose decree the present appeal is brought. We think there is no case for setting aside the ex parte decree. The most we should be prepared to do would be to direct that the defendant be at liberty to be heard on the basis that no written statement had been put in. But we are satisfied that inasmuch as the defendant was represented at the hearing by his pleader, if he had really had any reason to advance why the plaintiff's claim should not be decreed, he would have advanced it. As I have said, there is nothing whatever to suggest that the Judge prevented him from addressing the Court. In the circumstances, therefore, we think there is no ground for interfering with the order. The appeal is dismissed with costs.


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