ELAMKUNNAPUZHA PANCHAYATH Vs. DINKAR

JUDGEMENT

(1.) The core question arising for consideration in all these proceedings is the power of civil Courts to grant further time beyond the time limit prescribed under Order VIII, Rule 1 of the Code of Civil Procedure to file the written statement. The answer to the abovesaid question depends upon the interpretation of Rules 1, 9 and 10 of Order VIII of the Code of Civil Procedure. I have to state the facts briefly : O.P. No. 6422 of 2003

(2.) Elamkunnapuzha Panchayat, which is the defendant in O.S. 455 of 2002 on the file of Additional Munsiff, Kochi is the petitioner. The respondent instituted the suit. Summons in the suit was served on the petitioner on 28-9-2002. The petitioner appeared and the case was posted to 4-1-2003 for written statement. On that day, the counsel appearing for the petitioner appeared and sought for two days time to file the written statement. According to the counsel, he misplaced the statement of facts furnished by the Secretary of the defendant-Panchayat to prepare the written statement and, therefore, he could not prepare the written statement. The learned Munsiff set the petitioner-defendant ex parte on the ground that the written statement was not filed within ninety days and posted the case for ex parte evidence to 7-1-2003. On 6-1-2003, the petitioner filed the written statement along with I.A. 49 of 2003 to accept the written statement. The petitioner filed I.A. 48 of 2003 under Order IX, Rule 7 to set aside the order declaring the petitioner ex parte. The learned Munsiff dismissed I.A. 49 of 2003 on the sole ground that the defendant failed to file the written statement within ninety days and I.A. 48 of 2003 on the ground that since the petitioner did not file any written statement and without filing a pleading, the defendant cannot be allowed to participate in the proceedings. The suit was decreed ex parte. The petitioner has filed this writ petition challenging the two orders passed by the learned Munsiff in I.A. Nos. 48 of 2003 and 49 of 2003 and also the judgment passed in the suit. It is specifically contended that though the petitioner has alternate remedy of filing an appeal against the decree, in view of the fact that the orders passed by the learned Munsiff were without jurisdiction and also on assuming non-existence of jurisdiction the Original Petition is maintainable. The respondent has not filed any counter. W.P. (C) No. 25302 of 2003

(3.) The defendant in O.S. No. 474 of 2002 on the file of Munsiff s Court, Aluva is the petitioner. The respondent filed a suit for a decree of permanent prohibitory injunction. Summons in the suit was ordered and the case was posted for first appearance of the defendant to 22-1-2003. But before that date, the petitioner entered appearance as the respondent/plaintiff filed an injunction application which was subsequently dismissed on 13-12-2002. The petitioner did not file the written statement within one month from 22-1-2003. The case was adjourned to 20-5-2003. The petitioner filed the written statement on the reopening day along with I.A. 948 of 2003 to accept the written statement. The learned Munsiff dismissed that application. This writ petition is filed challenging that order. W.P. (C) No. 26424 of 2003