ABDUL GANI MIR Vs. SAKINA BANO

JUDGEMENT

(1.) The defendant filed this revision petition on 4-4-1989 on the plea that since the District Judge, Anantnag was not available in the district, the impugned order could not be challenged in appeal before him. Learned counsel for the plaintiff-respondent initially raised an objection to the maintainability of the revision petition, but then gave it up and learned counsel for the parties submitted that in the peculiary facts and circumstances of the case this petition may be treated as an appeal and disposed of accordingly. Their prayer is allowed and the petition is treated as an appeal.

(2.) The facts relevant for the disposal of the appeal may first be noticed.

(3.) The plaintiff-respondent filed a suit for rendition of accounts and dissolution of partnership on 30- 12-1985. Summons were issued to the defendants and on 15-2-1986, counsel for the defendants appeared and was directed to file the written statement which was not filed within the stipulated period and the time was extended till 11-3-1986. However, on 11-3-1986, the defendant instead of filing the written statement filed some written preliminary objections, further stating that after the decision on the preliminary objections, the written statement on merits would be filed. Learned Sub-Judge, Bijbehara, vide his order dated 12-3-1986 did not find any merit in the preliminary objections and came to the conclusion that after the amendment of Order VIII of the Code of Civil Procedure, the non filing of the written statement by the defendant on the date fixed by the Court mandated the Court to pronounce judgment 'against the defendants' and acting under Order VIII, Rule 10, C.P.C. (as amended) passed a judgment and directed a preliminary decree to be drawn up without giving any further opportunity to the defendant to file the written statement. It is this judgment which has been impugned in this appeal.