1. This is an appeal by the first defendant against the judgment of the learned Subordinate Judge decreeing O.S. No. 47 of 1943, as against the appellant. The appeal is filed under Order XLIII, Rule 1(6)of the Code of Civil Procedure which provides a right of appeal from an order under Rule 10 of Order VIII, pronouncing judgment against a party. The judgment does not say specifically that it is being pronounced against the first defendant under that order; and because this is so, a preliminary objection was raised on behalf of the plaintiff that no miscellaneous appeal lay and that the appellant's only right was to file a regular appeal and pay the required court-fee. We have found against this preliminary objection. Although the language of paragraph 2 of the judgment is somewhat ambiguous and refers not only to the failure of the appellant to file his written statement in time, but also to the fact that at the trial on the second February 1944 he did not appear, it seems clear to us that this judgment must be regarded as essentially passed against the appellant because he did not file his written statement by the 31st January, as called upon to do by the Court. There is no doubt that when he was called upon to file a written statement by the 31st January, he was definitely warned that if he did not do so judgment would be pronounced against him under Order VIII, Rule 10. It seems therefore to us reasonable to construe the judgment and decree in this case as recording an action of the learned Subordinate Judge taken under Order VIII, Rule 10. The appeal, therefore, cannot be said to be incompetent under Order XLIII, Rule 1(b).
2. It is of course, common ground that the written statement was not filed on the, 31st January. On that day, the appellant filed an application asking for a further three months' time for filing his written statement. That application was supported by an affidavit from a cousin of the appellant and a medical certificate granted on the 30th January, in Trichinopoly. The medical certificate said that the appellant was suffering from mental worry and high blood pressure, and in the opinion of the doctor, could not do any intelligent mental work for another three months. He required peace of mind and complete rest. The learned Judge passed orders on the 2nd of February, rejecting the application. He held that the facts in the case did not show that the appellant was in such a position that he was unable to attend to his share in the preparation of the written statement. We see no reason to differ from the discretion of the learned Subordinate Judge in refusing the application, and would point out further that, on the 31st January, there appears to have been no attempt made to obtain any affidavit from an advocate to show that the advocate whose primary duty, as we conceive it, is to prepare the written statement on behalf of his client, made any attempt to do so which was frustrated by the client's state of health. We are therefore not prepared to allow this appeal on the ground that the learned Judge erred in his discretion in refusing the application.
3. There is, however, a point of law taken in regard to an order under Rule 10. It is argued that an order under Rule 10 cannot be passed if a defendant fails to file a written statement when required to do so under Rule 1, and that Rule 10 can apply only to some default by a party under Rule 9. There can be no doubt that the default of the appellant in this case was under Rule 1 and not under Rule 9. The question whether Rule 10 relates only to Rule 9 or may also be taken to relate to Rule 1 is not free from difficulty. The only time when the matter appears to have come up for decision in this Court is in Rangasami Uday an v. Manickam Filial (1917) M.W.N. 241 (L.P. Appeal). There the learned Judges differed. Mr. Justice Ayling held that Rule 10 applies to Rule 1 as well as to Rule 9, and Mr. Justice Seshagiri Ayyar held to the contrary. There is therefore no authority of this High Court binding us in disposing of this matter. We are of opinion that the view of Mr. Justice Seshagiri Ayyar is the preferable view. Rule 9 of Order VIII runs thus:
No pleading subsequent to the written statement of a defendant other than by way of defence to a set-off shall be presented except by the leave of the Court and upon such terms as the Court thinks fit, but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time for presenting the same.
It is clear to us that the requisition upon any of the parties for a written statement referred to in Rule 9 can relate only to a written statement which is called for by the Court subsequent to the written statement which the defendant has already put in. It cannot amount to a mere repetition of the requisition already provided for in Rule 1. The word ' written statement' is appropriate because Rule 9 gives the Court power to call upon any of the parties to file a written statement. The expression ' any of the parties' includes the plaintiff, and though it is not impossible to describe an additional pleading filed by the plaintiff on the direction of the Court as an additional plaint it is much more appropriate to call it a written state ment. The further words ' the additional written statement' will of course apply to a defendant who has already filed the ordinary written statement contemplated under Rule 1. The next point is whether the expression in Rule 10 'when any party from whom a written statement is so required fails to present the same within the time fixed by the Court,' relates only to Rule 9 or to Rule 1 as well. It seems to us very difficult to hold that the word ' so ' occurring in this context in Rule 10 can possibly be related back to Rule 1. It must, in our opinion, refer to something which is in close juxtaposition to itself and that can only be the provision of Rule 9 It is true, as pointed out by Mr. Justice Ayling, that there seems to be no logical reason why a party who fails to comply with an order under Rule 9 should suffer this drastic penalty, whereas the same penalty is nt)t provided for a party who commits default under Rule 1. But that is a defect in the order which should, in our opinion, be set right if necessary by appropriate amendments. We must hold that there is something very strange on a natural interpretation of the words in Rule 10 to make it relate to Rule 1, even on the view suggested by Mr. Justice Ayling that rules a to 8 may be regarded as sub-rules under Rule 1. The fact remains that two pages of printed matter intervenes between the requisition of the Court under Rule 1 and the word 'so ' occurring in Rule 10. We are accordingly of opinion that the learned Judge had no jurisdiction to pronounce judgment under Rule 10 against the appellant. In so far, therefore, as he must be deemed to have done so, his decree will be set aside and it will be deemed to be a decree passed against the appellant because the appellant was ex parte. There will be no order as to costs.