STATE OF M.P. Vs. MADAN SINGH

JUDGEMENT

(1.) APPELLANT -defendants have preferred this appeal against the judgment and decree dated 16.10.1990 passed in Civil Suit No. 37 A/90 by Fourth Additional District Judge, Gwalior, decreeing respondent -plaintiff's suit for damages.

(2.) THE respondent did not appear in this Court despite service of notice by publication. 3. In appeal, the impugned judgment and decree has been assailed mainly on the ground that the learned trial Court committed illegality by not properly exercising its power under order 8 Rule 10, CPC in not permitting the appellants to file written statement and thereby forfeiting their right to file written statement, and thereby deprived the appellants from properly defending their claim. The findings on merit have also been assailed on the ground that those are not based on any legal evidence. 4. We have heard learned counsel for appellants and perused the record. 5. Briefly stated, it is borne out from the record that respondent instituted his suit in July, 1987 as an indigent person under Order 33 Rule 1, CPC which was registered as Miscellaneous Case No. 6/88. The enquiry under Order 33, CPC continued till 2.5.1989 when by its order, learned trial Court refused respondent -plaintiff's prayer for permission to sue as an indigent person and directed him to pay court -fees. Respondent -plaintiff was allowed time to pay Court -fees till 10.7.1989. It is found' that court -fees was not paid and instead the respondent -plaintiff challenged trial Court's order by way of revision in the Hon'ble High Court. The High Court vide its order dated 10.1.1990 passed in Misc. Appeal No. 56/90, quashed trial Court's order and remanded the matter back for rehearing and disposal afresh. It is found that order of the High Court and the original record were received in the trial Court on 18.1.1990. On that day itself, the matter was taken up for hearing when the two sides made statement that they did not want to produce any further evidence and after hearing the two sides, application was allowed permitting the respondent -plaintiff to sue as indigent person. It is to be noted that even after this, the suit was not registered as a regular suit. This mistake was noticed by learned trial Court on 16.10.1990 while delivering the judgment. Assuming for arguments sake that regular suit was registered on 18.1.1990, it would appear that the Court on 18.1.1990 allowed time to appellants to file written statement till 23.1.1990. It would be proper to reproduce order sheet dated 18.1.1990 :