Madras High Court
P.Kasthuri vs S.Viswanathan
C.R.P.(PD)(MD).No.1665 of 2018
BE F O R E THE MADURAI BE N C H OF MADRA S HIGH COURT
DATE: 2 5. 0 9 . 2 0 1 9
CORAM
THE HONOURA B L E MR. J U S T I C E KRI S H N A N RAMA S AM Y
C.R. P.(PD)(MD).No. 1 6 6 5 of 2 0 1 9
P.Kasthuri ... Petitioner
-Vs-
S.Viswanathan ... Respondent
PRA Y E R : Civil Revision Petition is filed under Article 227 of the Constitution
of India against the order dated 17.06.2019 passed by the I Additional Sub
Judge, Trichy in nunumbered I.A.No. of 2019 in O.S.No.612 of 2018.
For Petitioner : Mr.T.Lenin Kumar
O R DE R
The civil revision petition has been filed challenging the order passed by
the I Additional Sub Judge, Trichy in unnumbered I.A.No. of 2019 in O.S.No.
612 of 2018, dated 17.06.2019.
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C.R.P.(PD)(MD).No.1665 of 2018
2. The above Interlocutory Application has been filed by the revision
petitioner herein to pass a final decree, since the defendant in the suit failed to
file a written statement, in accordance with the amended provision of Order V
Rule 1 (i) of C.P.C., which reads as follows:
“Pr o vid e d furth e r that wh e r e the def e n d a n t fails to file the
written stat e m e n t within the s aid perio d of 30 day s , he s h all b e
allow e d to file the writte n stat e m e n t on su c h oth e r day s , as m a y b e
s p e c ifi e d by the C o urt, for rea s o n to b e re c o r d e d in writing and on
pay m e n t of su c h co s t s as the C o urt de e m fit, but which sh all not b e
later than on e hun dr e d and twe nt y day s fro m the dat e of s e r vi c e of
s u m m o n s and on ex piry of on e hun dr e d and twe nt y day s fro m the
dat e of s e r vi c e of su m m o n s , the def e n d a n t s h all forfeit the right to file
written stat e m e n t and the C o urt sh all not allow the written stat e m e n t
to b e tak e n on re c o r d.”
By referring the above provision, the revision petitioner contended that
the defendant is supposed to file a written statement. However, the defendant
has failed to file a written statement within 120 days from the date of service of
summon. Therefore, she filed the above application to pass a final decree.
However, the above application was returned stating that ex-parte order passed
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C.R.P.(PD)(MD).No.1665 of 2018
in O.S.No.612 of 2018 was set aside and written statement also filed. According
to the revision petitioner, even on the date of the ex-parte order dated
06.02.2019, the defendant failed to file the written statement. Therefore, he
contended that by the amended provision of Order V Rule 1 (i) of C.P.C., the
right of filing of the written statement stand forfeited and hence, there is no
question of filing a fresh written statement. Hence, he filed the present revision
petition to direct the Registry to number the I.A.
3. Heard the learned counsel for the revision petitioner and perused the
documents available on record.
4. In the present suit, summon was served to the defendant on
13.08.2018, but even on 06.02.2019, when the ex-parte order was passed, the
defendant did not file a written statement, according to the revision petitioner.
The defendant filed a petition to set aside the ex-parte order dated 06.02.2019
and the same was allowed on 17.06.2019 and further, he submits that along
with the application, the defendant filed the written statement. When the ex-
parte order was set aside and the written statement was taken on record, the
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C.R.P.(PD)(MD).No.1665 of 2018
main contention of the revision petitioner that the amended provision of Order
V Rule 1 (i) of C.P.C., prohibits the defendant to file the written statement, after
expiry of 120 days from the date of service of summon. No doubt in the
present case, from the date of service of summon, 120 days period is over, but
the question here is whether the amended provision of Order V Rule 1 (i) of
C.P.C., will be applicable to the present case or not?
5. In the light of the Commercial Courts Act, the Order V Rule 1 (i) of
C.P.C., has been amended and the proviso was inserted so as to enable the
Commercial Courts in the commercial suits to forfeit the right of the defendant
in filing the written statement beyond the period of 120 days from the date of
receipt of the summon. In the present case, admittedly, the Court is not a
Commercial Court as per the provisions of the Act. Further, the suit also has not
been filed as a commercial suit. In such a view of the matter, the amended
provision of Order V Rule 1 (i) of C.P.C., will not be applicable to the facts of
the present case.
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C.R.P.(PD)(MD).No.1665 of 2018
6. In view of the above, this Court does not find any material defect on
the part of the Registry of the Court below in returning the unnumbered I.A.
of 2019 in O.S.No.612 of 2018 filed by the revision petitioner herein. Hence, the
Civil Revision Petition is dismissed. However, considering the fact that the
present suit is of the year 2018 and the suit has been filed for recovery of
money, based on the promissory note, this Court directs the Court below to
dispose of the suit in O.S.No.612 of 2018 within a period of six months from the
date of receipt of a copy of this order. No costs.
2 5. 0 9 . 2 0 1 9
akv
To
The I Additional Sub Judge,
Trichy.
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KRI S H N A N RAMA S AM Y, J .
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