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Chimawa Rachaya Vs. Gangawa Gangadharaya - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case NumberAppeal from Order No. 30 of 1926
Judge
Reported in(1929)31BOMLR1118; 122Ind.Cas.423
AppellantChimawa Rachaya
RespondentGangawa Gangadharaya
DispositionAppeal allowed
Excerpt:
civil procedure code (act v of 1908), order viii, rule 10, order x, rule 1- written statement-set-off-counter written statement-questioning the parties before framing issues-practice and procedure.;order viii of the civil procedure code in terms applies only to a written statement and a set-of. where there is no set-off or a counter-claim, the plaintiff cannot be called upon to put in his counter written statement. if a court thinks it necessary to clear up the ground further before issues, the proper procedure is that laid down, under rule 1 of order x, to call upon the pleader or party by examination to admit or deny the allegations. - - a wrong practice cannot make order viii, rule 9, civil procedure code, applicable nor confer power under order viii, rule 10. as the present case..........'the plaintiff had shown utter laches and negligence' dismissed the suit with costs under order viii, rule 10, civil procedure code, on july 9, 1921.2. during the appeal the plaintiff died. there was a delay in the service of the summons and it has taken exactly eight years for this appeal to come on for hearing.3. it is argued for the appellant that there was no counter claim and therefore the plaintiff could not he called upon to put in a counter written statement; order viii had no application and the suit should not have been dismissed under order viii, rule 10, civil procedure code. it is contended for the respondents that on the various defences put forward in the written statements, it was necessary for the court to obtain a clear admission or denial to the various grounds.....
Judgment:

Madgavkar, J.

1. This is a suit of 1918. The issues are not yet framed. The plaintiff sued for possession of certain survey numbers on the ground that she was the nearest heir of her father, the last male holder. The twenty-one defendants raised various defences. Among these defences were that there had been a partition, that many of the lands had fallen in partition to a person other than the father, and that the plaintiff was born before the father was adopted into the family to whom the lands belonged, However that might be, after all the defendants had filed their written statements by June 2, 1921, the First Class Subordinate Judge ordered the plaintiff to put in what he called a counter-written statement on June 17, which was not so put in. Her pleader was given four adjournments to put it in and it was still not put in. The lower Court pointed out the fact that the suit was more than three years old, having been filed on June 26, 1918, and on the ground that 'the plaintiff had shown utter laches and negligence' dismissed the suit with costs under Order VIII, Rule 10, Civil Procedure Code, on July 9, 1921.

2. During the appeal the plaintiff died. There was a delay in the service of the summons and it has taken exactly eight years for this appeal to come on for hearing.

3. It is argued for the appellant that there was no counter claim and therefore the plaintiff could not he called upon to put in a counter written statement; Order VIII had no application and the suit should not have been dismissed under Order VIII, Rule 10, Civil Procedure Code. It is contended for the respondents that on the various defences put forward in the written statements, it was necessary for the Court to obtain a clear admission or denial to the various grounds taken for the defendants, and the order of June 2, 1921, to the plaintiff to put in her counter written statement was justified under Order VIII, Rule 9, and if so, the dismissal under Rule 10 was proper.

4. Order VIII, Civil Procedure Code, in terms applies only to a written statement and a set-off. This is not a case of a set-off' or a counter-claim so that the plaintiff could be called upon to put in her counter written statement. If a Court thinks it necessary to dear up the ground further before issues, the proper procedure is that laid down under Order X, Rule 1. Civil Procedure Code, to call upon the pleader or party by examination to admit or deny the allegations. This method the lower Court did not follow in the present case.

5. I am aware that what I am constrained to call a vicious practice of putting in counter written statements as a matter of course has grown up in many Subordinate Courts including the First Class Subordinate Judge's Court of Belgaum. A wrong practice cannot make Order VIII, Rule 9, Civil Procedure Code, applicable nor confer power under Order VIII, Rule 10. As the present case shows, the sooner this indiscriminate practice ceases, the better.

6. The appeal is allowed, the order of the trial Court is set aside, and the But remanded for framing issues and early disposal on the merits according to law.

7. As regards costs, the respondents, having opposed, must pay the appellant's costs in this Court. The costs in the trial Court should be costs in the cause.

8. The question which of the parties, if any, should be given separate costs according to the order of July 9, 1921, is a question which will better be decided at the end of the trial.


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