G NAGAIAH Vs. V SARALA DEVI

JUDGEMENT

(1.) The respondent in this appeal A.S. No. 174 of 2002 moved an application in C.M.P. No.4478 of 2004 in C.M.P. No. 1323 of 2002 in A.S. No. 174 of 2002 to vacate the interim stay granted by this Court on dated 31-1-2002 made in C.M.P. No. 1323 of 2002. This Court in C.M.P. No. 1323 of 2002 made the following order:

(2.) Aggrieved by the judgment and decree dated 31-10-2001 in O.S. No.22 of 2001 on the file of Senior Civil Judge, Nalgonda, the defendants had preferred the present appeal. It is not in dispute that the matter was coming up for filing of the written statement and though several opportunities were given, since the written statement was not filed by the defendants, the learned Senior Civil Judge, Nalgonda exercising the powers under Order 8, Rule 10 of the Code of Civil Procedure (hereinafter referred to as 'the Code' for the purpose of convenience) had accepted the claim of the plaintiff and ultimately, had decreed the suit declaring the respective shares of the plaintiff and defendants and also passed a preliminary decree accordingly with a direction that the defendants shall render accounts of the dissolved firm to the advocate-commissioner to be appointed in final decree proceedings for settling the profits to the extent of the respective shares of the plaintiff and defendants specified in the judgment.

(3.) Sri M. Venkatram Reddy, the learned Counsel representing the appellants would maintain that no doubt, there were some latches on the part of the appellants- defendants. But, however, the written statement also was prepared but due to their misfortune, the appellants-defendants could not file the written statement and inasmuch as costs had not been paid and the written statement was not filed and there was no representation, the learned Senior Civil Judge, Nalgonda proceeded to decide the matter exercising the powers under Order 8, Rule 10 of the Code. The learned Counsel would also maintain that the Court is having power to extend time for filing the written statement despite the fact that Order 8, Rules 1 and 10 of the Code is amended by the Act 22 of 2002. The learned Counsel for the appellants relied on Nachipeddi Ramaswamy v. P. Buchi Reddy reported in 2003 (4) ALD 648. The Counsel also would submit that while the written statement was not filed within time, always it is not imperative to make ex parte judgment and it is within the discretion of the Court either to make ex parte judgment or to give further opportunity. The Counsel would also maintain that normally a matter may have to be decided on merits and the practice of making ex parte judgments may have to be deprecated. The Counsel also placed strong reliance on Dineshwar Prasad Bakshi v. Parmeshwar Prasad Sinha in AIR 1989 Patna 139.