1. There were proceedings under Section 145, Criminal P.C., between the parties to this appeal. The property in dispute was a temple and the appellants alleged that the temple belonged to the Rewa State, that the respondent, Mahant Govind Das, had been employed by the State to look after the temple, that he had been dismissed and that the appellants had been appointed in his place. Mahant Govind Das alleged that he was entitled to possession over the temple in his own right. The Magistrate put a receiver in possession and ultimately passed an order that the, receiver should deliver the property to the Rewa State or its representatives. The respondent then instituted the suit out of which this appeal has arisen. He made an application that the Court should appoint a receiver pending the decision of the suit., The Court, therefore, appointed one Ram Charan Das, who took over the property from the receiver who had been appointed by the Magistrate. We mention these facts because the receiver appointed by the Magistrate was one of the defendants in the suit and was originally impleaded as a respondent in this appeal. Notice was not served upon him and he has been removed from the array of respondents. His removal does not affect the decision of the appeal.
2. The Court issued a summons to the appellants in the ordinary form prescribed in the appendix to the Code of Civil Procedure for those cases in which a date is fixed for the settlement of issues alone, but the blank spaces in the form were filled in a somewhat unsatisfactory manner. The trouble arose because the Court directed that 25th February should be fixed for the filing of written statements and the case should then be put up on 5th March for the framing of issues. It is not, (however, contended that the appellants were misled by the notice. It is clear that they understood the direction of the Court that the written statements, if any, should be filed on 25th February and that the case should come up before the Court on 5th March for the framing of issues. The appellants did not file a written statement on or before 25th February. The respondent made an application to the Court at 3-45 P.M. on that date stating that no written statements had been filed up to that time and that the Court should proceed to decide the suit. The Court passed an order on the application that it should be put up the next day as no response had been made. It is not clear whether the case was called on for hearing after the application was filed, but there is no doubt that it was put up the next day and the Court then did record the fact that the defendants did not appear when the case was called on for hearing. The evidence of the plaintiff was recorded ex parte. The case was adjourned to 28th February and on that date a decree was passed in favour of the plaintiff. The appellants made an application to the Court on 5th March that the ex parte decree passed on 28th February should be set aside. The Court rejected the application and this appeal has been filed against the order rejecting the application, The appellants have urged that the date fixed for hearing, on a proper construction of the order of the Court and of the summons issued to the defendants, was the 5th March, and that they had good ground for not appearing when the case was called on for hearing on 26th and 28th February. The respondent urges, on the other hand, that the date fixed for hearing was 25th February and that the Court below was perfectly justified in passing a decree against the appellants when they did not appear on that date.
3. On an examination of the relevant rules we have come to the conclusion that a defendant is not compelled to file a written statement unless he is definitely directed to' do so by the Court. In this particular case the order of the Court, in our judgment, did not require the defendants to file written statements, but merely gave them a period up to 25th February to file statements if they wished to do so. Rule 1 of Order 8 leaves it to the discretion of the defendant to file a written statement unless the Court particularly requires him to do so, and he can exercise that discretion at any time before the first hearing or up to some date which is fixed by the Court. It seems to us that the order of the Court permitted the defendants in the suit which has given rise to the appeal to file their written statements on or before 25th February, and there is nothing to indicate that there was a special injunction by the Court that they must file written statements. Under Rule 5 of Order 5, the Court shall determine at the time of issuing a summons whether it shall be for the settlement of issues only or for the final disposal of the suit. In the present case the Court obviously directed that. the summons should issue for the settlement. of issues only and the date fixed far such settlement was 5th March. In these circumstances we cannot hold that the defendants were bound to appear on 25th February. There is nothing to indicate that they might not have filed their written statements on any earlier date if they had wished to do so, and they were entitled to exercise their discretion not to file written statements at all. The case should have been called for hearing on 5th March, and under the provisions of Rule 1, Order 10, the Court would have been bound on that date to ask the defendants whether they admitted or denied the allegations of fact made in the plaint, although possibly the Court might not have been bound to allow them to file written statements. If the defendants had denied any of the allegations made in the plaint, the plaintiff would have had to prove the allegations before the Court before it could pass a decree in his favour. We think, therefore, that the learned Judge was not entitled to pass a decree against the defendants on 28th February. Learned Counsel for the respondent has argued that the Court was so entitled under the provisions of Order 8, Rule 10, or Order 15, Rule 1 or Order 17, Rule 2. We do not think that Order 8, Rule 10 applies, because we are satisfied that there was no de-finite order by the Court compelling the defendants to file written statements. Order 15, Rule 1 does not apply because the Court was not entitled to assume that the parties were not at issue on any questions of law or fact without complying with the provisions of Order 10, Rule 1; and Order 17, Rule 2 does not apply because no part of the defendants' evidence had been recorded. Learned Counsel has also argued that the appellants cannot bring their application for setting aside the ex parte decree within the terms of Order 9, Rule 13 because they admitted that summons had been duly served upon them and because they had no good reason for not appearing on the date when the ex parte decree was passed. In our judgment, there is no force in this argument. As we have already held, the defendants were not bound to appear in Court on 25th February! and they certainly had good ground for not appearing on 26th' and 28th February because; they had no notice at all of those dates. The final argument addressed to us by learned Counsel for the respondent is that the appellants filed an appeal against the ex parte decree itself and that that appeal was dismissed by this Court for default. In this connection we may refer to the case in 39 ALL. 393. It was there pointed out that an order dismissing an appeal for default did not amount;to a decree and consequently the decree of the lower Court did not merge in any decree of this Court. As the decree of the lower Court continued to be effective, there was nothing to prevent the appellants from getting it set aside under the provisions of Order 13, Rule 9, and there is no bar to our entertaining this appeal. Our conclusion is that the appeal must succeed and we consequently set aside the order of the Court below, set aside the ex parte decree under the provisions of Order 9, Rule 13 and remand the case to the Court below for decision upon its merits. The costs of this appeal will abide the result.