ALSON MOTORS Vs. RAJESH KUMAR

JUDGEMENT

(1.) This Ist appeal is direct-ed against the judgment and decree passed by District Judge, Jammu on 31-3-1983 whereby the Court while closing the right of defendant to file written statement has passed a decree in terms of the prayer made in the plaint.

(2.) The plaintiff's suit was for declaration of his being an allottee in possession of the suit land and also for grant of permanent injunction restraining the defendant from dispossessing the plaintiff from the said land in any manner whatsoever. Defendant's counsel filed his power of attorney on 17-12-1982. On two subsequent dates i.e. 27-12-1982 and 27-1-1983, counsel for the defendant sought adjournments for filing of his written statement which were granted. Later, on 26-2-1983 and 11-3-1983 also the written statement was not filed and adjournments sought. On both these dates adjournments were granted subject to payment of Rs. fifty and Rs. one hundred as costs respectively. On 30-3-1983 also neither the costs were paid nor written statement was filed. That being so the Court proceeded in terms of O. VIII, R. 10 of CPC hereinafter called 'the Code' and after striking the defence, decreed the suit. The trial Court has while passing this order held, that while doing so, it proceeded in terms of O. XVII, R. 3 of the Code.

(3.) In the event of defendant's failure to present his written statement for five consecu-tive dates as shown above, the Court had no alternative, but to proceed in terms of O. VIII, R. 10 of CPC. Needless to mention that under O. VIII, R. 1, the defendant is expected to present written statement on the first hearing. Court has shown sufficient indulgence in granting adjournments and even then the written statement was not filed. So the Court was justified in proceeding under O. VIII, R. 10. O. XVII, R. 3 of the Code relates to a situation where a party fails to produce evidence or cause attendance of his witnesses or to perform any other act necessary for the further progress of the suit. Let it be observed in the first instance that it is O. VIII, R. 10 which would apply in the instant case and not O. XVII R. 3 of the Code.