Dismissed

Bishan Singh v. Iqbal Singh

Rajasthan HC5 Feb 2013CMA/156/1999

Case brief

AI extract

What is this about?

This judgment dismissed an appeal challenging the dismissal of an application under Order IX Rule 13 CPC seeking to set aside a decree passed under Order VIII Rule 10 CPC. The Court held the appeal non-maintainable as the decree was not ex parte.

What did the court decide?

The appeal filed against the order of dismissal of the application under Order IX Rule 13 CPC is dismissed with no costs.

Bishan Singh Vs Iqbal Singh — Specific Performance | Rajasthan HC (2013)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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: J U D G M E N T :

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S.B. CIVIL MISC. APPEAL NO.156/1999

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(Bishan Singh Vs. Iqbal Singh)

Date of Judgment

05^th February, 2013

PRESENT

HON'BLE MR. JUSTICE ARUN BHANSALI

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Mr. N.L. Joshi, for the appellant. Mr. S.L. Jain, for the respondent.

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BY THE COURT:

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This appeal has been filed against the order dated 15.02.1999, whereby, the application filed by the appellant under Order IX, Rule 13 CPC has been dismissed as not maintainable.

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The brief facts of the case are that the respondent Iqbal Singh filed a suit for specific performance of agreement dated 15.09.1982 before the Court of Additional District Judge, Raisinghnagar. After issuance of summons, when no written statement was filed despite providing opportunity, the right to file written statement has been closed and the suit was decreed under Order VIII, Rule 10 CPC.

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After passing of the decree, present application under Order IX, Rule 13 CPC was filed setting out grounds for the reasons which led to appellant's failure to file the written statement within time granted by the Court.

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The learned trial court after hearing the parties, came to

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the conclusion that the judgment passed under the provisions of Order VIII, Rule 10 CPC is in the nature of a decree in terms of express provisions of Rule 10 of Order VIII CPC and only first appeal under Section 96 CPC would be maintainable as the provisions of Order IX, Rule 13 CPC are applicable where a decree is passed ex parte. In that view of the matter, the application under Order IX, Rule 13 CPC was dismissed as not maintainable.

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I have heard learned counsel for the parties and perused the material placed on record.

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It was submitted by learned counsel for the appellant that the nature of decree passed under Order VIII, Rule 10 CPC is that of a ex parte decree, inasmuch as, no written statement is there on record and, therefore, application under Order IX, Rule 13 CPC is maintainable. It was further submitted that in any case the present appeal may be treated as an appeal against the decree passed under Order VIII, Rule 10 CPC and that the appellant was prepared to pay the requisite court fees.

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On the other hand, learned counsel for the respondent supported the judgment passed by the learned trial court. It was submitted that the provisions are quite clear and explicit and the order impugned does not require any interference by this Court.

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I have considered the rival submissions made at the Bar. Admittedly, in the present case, the decree was passed on 31.01.1995 after service of summons on the appellant and in the

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presence of his counsel and, in view of non-filing of the written statement under the provisions of Order VIII, Rule 10 CPC.

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The provisions of Order VIII, Rule 10 CPC reads as under:-

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“ 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 in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up.”

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A bear reading of the said provision reveals that where any party from whom a written statement is required, fails to file the same within the time permitted by the Court, the Court shall pronounce judgment against him and on the pronouncement of such judgment a decree shall be drawn up.

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On the other hand, provisions of Order IX, Rule 13 CPC reveals that the said provision is applicable in a case where a decree is passed ex parte against the defendant.

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Therefore, as the decree dated 31.01.1995 was not passed ex parte against the appellant, the application filed under Order IX, Rule 13 CPC was not maintainable and the same was rightly rejected by the learned trial court. So far as the submission regarding treating the present appeal as an appeal under Section 96 CPC, suffice it to say that the grounds set out in the memo merely deal with the fact of passing of decree under Order VIII, Rule 10 CPC and that the same was required to be set aside under the provisions of Order IX, Rule 13 CPC, no plea on the

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merits of decree dated 31.01.1995 has been raised and, therefore, in the said circumstances and the fact that more than 17 years have passed since the decree was passed, the prayer in this regard cannot be accepted.

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In view of the discussion hereinabove, the appeal has no substance and the same is, therefore, dismissed. No costs.

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(ARUN BHANSALI), J.

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A.K.Chouhan/- 5

Bishan Singh v. Iqbal Singh

Case brief

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What did the court decide?

Bishan Singh v. Iqbal Singh

Case brief

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