High Court allowed revision dismissing impugned order dismissing appeal under Order 43 Rule 1(b). Held decree under Order 8 Rule 10 CPC appealable under Section 96. Case remanded to District Judge to decide appeal on merits.
Impugned order set aside; Case remanded to learned District Judge, Bhiwani to dispose of the appeal on merit.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
CR No.718 of 1992
1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CR No.718 of 1992 Date of Decision: 2.12.2008
Om Parkash & Anr.
....Petitioners
Vs.
Smt.Janaki
..Respondent
Coram: Hon'ble Mr. Justice Vinod K.Sharma
Present: Mr.Mani Ram Verma, Advocate, with Ms.Shivani Verma, Advocate, for the petitioners.
None for the respondent.
Vinod K.Sharma,J. (Oral)
This revision petition is directed against the order dated 1.2.1992 passed by the learned District Judge, Bhiwani dismissing an appeal filed by the petitioners against the judgment and decree dated 5.8.1991passed by learned Sub Judge First Class, Bhiwani as not maintainable.
The plaintiff/respondent filed a suit for permanent injunction claiming herself to be the owner in possession of Plot No.B-10 measuring 160 sq.yards. The case set up by the plaintiff was that she had purchased the said plot from Nahar son of Maman Singh vide registered sale deed dated
CR No.718 of 1992
2
10.7.1997 for a consideration of Rs.5000/- and that the petitioners have no right, title or interest in the said plot. It was further claimed that they are interfering in the possession of the plaintiff and thus, suit for permanent injunction was filed.
In spite of opportunities having been granted to the petitioners they failed to file the written statement. Thus, the suit was proceeded under Order 8 Rule 10 of the Code of Civil Procedure (for short the Code) and judgment was pronounced in favour of the plaintiff restraining the defendants from interfering in the possession of the plaintiff over the suit property, in any manner, whatsoever.
Order 8 Rule 10 of the Code of Civil Procedure reads as under:-
“10. Procedure when party fails to present written statement called for by Court.- Where any party from whom a written statement is required under rule 1 or rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order relating to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up.”
The petitioners preferred an appeal against the judgment of the learned trial court in which preliminary objection was taken by the respondent/plaintiff that the appeal was not competent as the judgment passed under Order 8 Rule 10 of the Code was earlier appealable under Order 43 Rule 1 (b) of the Code but the same stands omitted by amendment of the Code of Civil Procedure and thus, the appeal was not competent.
CR No.718 of 1992
3
Learned counsel for the petitioners contends that the impugned judgment passed by the learned District Judge, Bhiwani cannot be sustained in as much as learned District Judge has failed to go into the object of deletion of the Order 43 Rule 1 (b) from the Code. The contention of the learned counsel for the petitioners is that by way of amendment of Order 8 Rule 10 of the Code of Civil Procedure it has been provided that when an order is passed under Order 8 Rule 10 of the Code the court is bound to draw a decree.
Learned counsel for the petitioners contends that appeal before the District Judge under section 96 of the Code against the decree passed by the learned trial court was competent hence impugned order rejecting the appeal as not competent cannot be sustained.
There is force in the contention raised by the learned counsel for the petitioners. Once a decree was passed by the learned trial court while passing an order under Order 8 Rule 10 of the Code the same was appealable under section 96 of the Code and therefore, the appeal could not have been dismissed as not maintainable.
Consequently, the revision petition is allowed. The impugned order is set aside. The case is remanded back to the the learned District Judge, Bhiwani to dispose of the appeal on merit in accordance with the law.
(Vinod K.Sharma) Judge
2.12.2008 rp
2 issues framed by the court
Whether an appeal filed against a decree passed under Order 8 Rule 10 of the Code of Civil Procedure is maintainable despite the omission of Order 43 Rule 1 (b).
Whether the deletion of Order 43 Rule 1 (b) bars appellate remedies against a final decree passed under Order 8 Rule 10.
3 provisions across 1 enactments
Om Parkash & Anr.
Smt.Janaki
Vinod K.Sharma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
