CHIMAWA RACHAYA Vs. GANGAWA GANGADHARAYA

JUDGEMENT

(1.) This is a suit of 1918. The issues are not yet framed. The plaintiff sued for possession of certain survey numbers on the ground that she was the nearest heir of her father, the last male holder. The twenty-one defendants raised various defences. Among these defences were that there had been a partition, that many of the lands had fallen in partition to a person other than the father, and that the plaintiff was born before the father was adopted into the family to whom the lands belonged, However that might be, after all the defendants had filed their written statements by June 2, 1921, the First Class Subordinate Judge ordered the plaintiff to put in what he called a counter-written statement on June 17, which was not so put in. Her pleader was given four adjournments to put it in and it was still not put in. The lower Court pointed out the fact that the suit was more than three years old, having been filed on June 26, 1918, and on the ground that "the plaintiff had shown utter laches and negligence" dismissed the suit with costs under Order VIII, Rule 10, Civil Procedure Code, on July 9, 1921.

(2.) During the appeal the plaintiff died. There was a delay in the service of the summons and it has taken exactly eight years for this appeal to come on for hearing.

(3.) It is argued for the appellant that there was no counter claim and therefore the plaintiff could not he called upon to put in a counter written statement; Order VIII had no application and the suit should not have been dismissed under Order VIII, Rule 10, Civil Procedure Code. It is contended for the respondents that on the various defences put forward in the written statements, it was necessary for the Court to obtain a clear admission or denial to the various grounds taken for the defendants, and the order of June 2, 1921, to the plaintiff to put in her counter written statement was justified under Order VIII, Rule 9, and if so, the dismissal under Rule 10 was proper.