MAQBOOL HUSSAIN Vs. ASHOK KUMAR

JUDGEMENT

(1.) THIS revision petition is directed against the order dated 20 -12 -1977 of Munsiff Mendhar striking out the defence of the defendant and proceeding ex -parte against him for his default to file the written statement in the case.

(2.) A preliminary objection has been raised on behalf of the respondents that the revision petition is not competent in -as -much -as the petitioner has remedy by way of appeal under Order 43 Rule (1) (b) of the Code of Civil Procedure. I, however, do not agree with this argument because what Order VII.R. 10 envisages is that where the defendant fails to file the written statement so required within the time fixed by the court then the court may pronounce judgment against him or pass such other order as it thinks fit. It is the order of the pronouncing of judgment under the Rule that has been made appealable and not any other order made under that Rule. The same observation has been made in A. I. R. 1931 Lahore 77. A decision of Oudh Chief Court reported as A. I. R. 1925 Oudh 567 is also to the same effect.

(3.) IN the instant case what the court has done is that it has struck out the defence of the defendant because of his failure to file written statement and has ordered exparte proceedings against him. That order cannot be said to be judgment in the case. Judgment means formal expression of adjudication on the rights of the parties. Therefore Order 43 R. l(b) will not apply and the preliminary objection has no force. The same is, therefore, overruled.