SIVASANKARAN ACHARY Vs. SREEKANTH

JUDGEMENT

(1.) The first defendant in a suit for money filed by the first respondent is the revision petitioner. The Civil Revision Petition is filed against an order passed by the court below refusing to set aside an order holding that the suit be heard ex parte.

(2.) The revision petitioner appeared before the court below on 8.1.2002 in response to the summons received by him and prayed for time for filing the written statement. The case was adjourned for filing the written statement to 8.2.2002 and on subsequent occasions. Finally the suit was posted to 13.8.2002 for filing written statement. On that day the revision petitioner did not appear. The learned Sub Judge set the revision petitioner ex parte and posted the case for ex parte evidence on 2.9.2002. On 2.9.2002, the petitioner filed I.A. No. 768 of 2002 for setting aside the ex parte order and permitting him to file the written statement. The I.A. was dismissed by the impugned order. That order is under challenge in this Civil Revision Petition.

(3.) The learned counsel appearing for the revision petitioner submitted that the view taken by the learned Sub Judge that he has no power to grant time beyond 90 days from the date of receipt of summons in view of the amendment to the C.P.C. is illegal and unsustainable. It is argued that the petition filed was one under O. IX, R.6 and not under O.5 R.1 or under O.8 R.1 and the petition filed under O.9 R.6 cannot be dismissed in view of the provisions contained in O.5 R.1 of the Code of Civil Procedure. It is also argued that the learned Sub Judge failed to note that the provisions of O.5 R.1 and O.8 R.1 are not applicable to cases instituted prior to 1.7.2002 in view of the provisions contained in S.32(j) and (1) of the C.P.C. (Amendment) Act, 1999 (Act 46 of 1999) and substituted by S.15(b)(ii) and (iii) of C.P.C. (Amendment) Act, 2002 (Act 22 of 2002).