when the suit was dismissed for default, taking written statement and counter claim on record and passing an exparte decree in the court claim is bad in law

2020 APEX COURT [42 ]- when the suit was dismissed for default, taking written statement and counter claim on record and passing an exparte decree in the court claim is bad in law . On 5 August 2016, the suit instituted by the appellant was dismissed in default. The counter claim, which was filed by the first respondent, would have been maintainable if prior to the suit being dismissed, the first respondent had lodged his written statement and, together with it, the counter claim. The facts before the Court show that the first respondent did not deliver his defence and the time for delivering his defence had also come to an end without an order of the Trial Court permitting the written statement to be taken on the record in terms of the proviso to Order VIII Rule 1. The counter claim was taken on the record, together with the written statement, upon the dismissal of the suit on 5 August 2016. The learned Trial Judge made an effort to overcome the legal effect of the position which would emerge as a result of the failure of the first respondent to lodge the written statement and counter claim within the prescribed period by observing that the written statement would be taken on the record as of 5 March 2016. This was clearly not open to the learned Trial Judge. The position which then emerges is that the written statement as well as the counter claim was not validly taken on the record prior to the dismissal of the suit. Hence, the basis on which the counter claim was decreed is flawed.