1. An interesting question regarding the maintainability of the application filed by the respondent herein under Order 9, Rule 13, C. P. C. arises for decision in this civil revision petition. The plaintiff in 0. S. No. 10813 of 1977. on the file of the VIII Asst. Judge. City Civil Court. Madras is the petitioner in this civil revision petition, which is directed against the order of the court below allowing an application in I. A. Xo. 1983 of 1979 in 0. S. No. 10813 of 1977. filed by the respondent herein under Order 9, Rule 13. C. P. C. The petitioner sought to recover a sum of Rs. 10817.90 against the respondent herein on the basis of an agreement dated 11-5-1977, entered into between the respondent company and the medical representatives. The suit was instituted on 21-12-1977 and posted on 18-21978 for first hearing. Thereafter. on 28-7-1978, the suit was posted for the filing of a written statement by the respondent. On that day. the written statement was not filed by the respondent and thereupon. the court Proceeded to dispose of the suit as under-
'No representation made by the defendant. Suit decreed with costs as Drayed for under Order 8. Rule 10 C. P. C.11 On 1-8-1978. the respondent herein filed 1. A. No. 1983 of 1979 under Order 9. Rule 13. C. P. C. and prayed for the setting aside of the ex parte decree passed on 28-7-19'78. In support of that application. an affidavit was filed by one of the counsel who was appearing for the respondent to the effect that on 28-7-1978,when the written statement should have been filed. the senior counsel was not in station, and. therefore. the deponent had to had to attend to various cases in the Labour Court and that after finishing such work when he came to the VIII Asst, City Civil Court. he learnt that the suit had been called and the respondent had been, set ex parte an ex parte decree also had been Passed. It was also further stated that on 27-7-1978. the draft written statement sent to the respondent for approval had been received with instructions to ask for a week's time for filing the written statement and, therefore. the counsel wanted to take a short extension of time for the Purpose of filing a written statement. Claiming that the respondent had a good defence to the suit and that the non-representation of the respondent on 28-7-1978 was neither willful nor deliberate but due to circumstances stated earlier. the respondent had Prayed for the setting aside of the ex parte decree.
2. This application was opposed by the petitioner on the -around that as the suit was decreed under Order 8. Rule 10 C. P. C.. the decree passed was one on merits and. therefore. the application. to set aside the ex parte decree is not maintainable. It was also the further case of the petitioner that the respondent entered appearance on 25-3~1978. and the suit was adjourned to 6-7-1978 for the purpose of filing a written statement, when time was extended further for filing the written statement till 28-71978. On that day. when the case was called. since there was no representation. the suit. according to the Petitioner. was decreed under Order 8. Rule 10 C. P. C.. and therefore. it is not open to the respondent to apply under Order 9. Rule 13 C. P. C. on the footing that the decree that was passed was an ex parte one. A further objection was also raised by the petitioner that the remedy, if at all, that would be available to the respondent, war, by way of an appeal and not an application to set aside the ex Parte decree.
3. The learned VIII Asst. Judge, City Civil Court. Madras. who enquired into this application held that the decree Passed against the respondent on 28-71978 was only on account of the nonappearance of the counsel as well as the Party and the decree should. therefore, be construed only as an ex parte decree and not a decree on merits. and therefore the application under Order 9. Rule 13 C. P. C.. would be maintainable. However. the ex parte decree was set aside on condition of the payment of a sum of Rs. 100/- to the petitioner on or before 12-6-1979. failing which. it was directed that the petition to set aside the ex parte decree shall stand dismissed. It is not now in dispute that this amount of Rs. 100/- had been deposited by the respondent within time. Though the petitioner would still question the maintainability-f of the application filed by the respondent herein under Order 9. Rule 13 C. P. C.
4. The learned counsel for the petitioner contends that the decree in the Present case was passed under Order 8. Rule 10 C. P. C. consequent to the nonfiling of the written statement by the respondent herein on the day on which the suit stood posted and. therefore. the decree passed under such circumstances cannot be considered to be an ex parte decree falling under Order 9. Rule 13 C. P. C. It is also further contended that before this decree, can be called an ex Parte decree. the respondent should have been set ex Parte under the provisions of Order 9. Rule 6 C. P. C. and if. without resort to such a course, a decree had been passed against the respondent, that would not be an exparte decree falling within the scope of 0. 9. Rule 13 C. P. C. On the other hand, the learned counsel for the respondent contends that the decree that has been passed in the instant case is one for default on account of the absence of a party and in the presence of one side only and the substance of the court's action is to have passed a judgment and decree for default and. therefore, this cannot be construed an adjudication on the merits so as to exclude the applicability of Order 9. Rule 13 C. P. C.
It is also contended that ex parte decrees contemplated by the Civil Procedure Code are not merely confined to cases where the procedure under 0. 9, Rule 6 C. P. C. has been observed. but also to other cases as well where the court passes a decree for default of the presence of the party as in this case. The further contention of the learned counsel for the respondent is that-mere perusal of the so-called judgment which resulted in the decree would indicate that the merits have not been gone into and the petitioner has not even given evidence in support of his claim and. therefore. The decree in the present case would be something inferior than an ex parte decree even and therefore.' the respondent should be afforded an oppourtunitv of contesting the suit on the merits.
5. The question that arises. therefore. for consideration is. what is the nature of the decree passed by the court in the instant case on 28-7-1978. The judgment given by the court has already been extracted. That does not indicate that the court applied its mind to the claim made by the petitioner in the suit and after considering such evidence as was made available by the Petitioner, proceeded to afford relief to the petitioner. A Perusal of the judgment would indicate that it was the result of a mere mechanical application of the provisions of Order 8. Rule 10 C. P. C. It is necessary to point out that the judgment does not even conform to the requirements of the definition of a 'judgment' under Section 2(9) C. P.C., which requires that the judgment should contain the grounds for a decree or order. In the present case no ground as such for entertainingly the claim of the petitioner and affordably relief to him. has been mentioned in the decree of the order pronounced by the court. The judgment in the present case does not satisfy the requirements of Section 2(9) C. P. C. and cannot. therefore, be held to be a judgment on the merits of the case.
The judgment as well as the decree passed in the present case clearly establish that they were, also passed for default of appearance of the respondent and in its absence and by not even examining the evidence. if any, on behalf of the Petitioner. In other words. the adjudication is one sided and in favour of the petitioner for the failure of the respondent to file its written, statement on that day. It is the substance of the court's action and adjudication that matters and not the label appended to it. The requirement under Order 8 Rule 10 C. P. C. to pronounce a judgment against the party who fails to present a written statement does not indicate that he need for writing a judgment is dispensed with and that a mechanical one sided order should be made by the court without applying its mind. It therefore follows that in, the present case there has been no judgment on the merits. but only a decree against the respondent owing to its failure to file a written statement.
The provision in 0. 8, R. 10, C. P. C. is not new. though certain changes have been made therein by Act 104 of 1976. The words is required under Rule 1 or Rule 9' 'Permitted or fixed by the court as the case may be, the court shall' and 'and on the Pronouncement of such judgment. a decree shall be drawn W have been inserted therein by the amending-a Act 104 of 1976. The inclusion of the words 'and on the Pronouncement of such judgment. a decree shall be drawn up does not really throw any light upon the nature of the decree so drawn up as in everv case when a iudgment is Pronounced. it should be followed by a decree. Nor the introduction of the words remitted or fixed by the court, as the case may be. the court shall' indicate anything with reference to the nature of the adjudication made by advising the Provisions of Order 8. Rule 10 C. P. C. The insertion of the words 'is required under Rule I or Rule 9' was only to clear UP a doubt entertained whether the Procedure under Order 8, Rule 10 C P. C: can be invoked in case of a failure to file a written statement under Order 8, Rule9 C. P.C. one or would cover also cases falling under Order 8. Rule I C. P~ C. and this also does not throw any light on the nature of the decree Passed as a result of the application of Order8, Rule 10 C. P.C. The considerable reliance Placed by the learned counsel for the Petitioner upon the changes brought about by Act 104 of 1976 in the language of Order 8. Rule 10 C. P.'C. cannot, therefore. advance his contention that the decree Passed in the Present case is one on merits.
6. The submission of the learned counsel for the petitioner that unless resort to 0. 9, R. 6 C. P. C. is had, there cannot be an ex Parte decree at all, is in my opinion, not acceptable. Order 9, Rule 6 C. P. C. provides for the suit bein2 Proceeded with ex -parte. But when the Provisions of Order 9. Rule 13 C. P. C. are examined. there is no indication therein that onlv to cases where an ex parte decree is Passed after observing the Procedure under Order 9. Rule 6 C. P. C. the Provisions of 0. 9. Rule 13 C. P.C. are applicable. Indeed the opening words of Order 9 Rule 13 C, P. C. would exclude such a narrow construction Pleaded for by the learned counsel for the Petitioner. The use of the words in any case in which a de-cree is Passed ex parte is wide enough to cover all cases of exparte decrees,no matter for What reason such an exparte decree has been Passed. In the absence. therefore, of any restriction with reference to the applicability of the Provisions of Order 9 Rule 13 C. P. C. to cases covered by Order, 9 Rule 6 C. P. C. it is not Possible to construe the Provisions of 0. 9. Rule 13 C. P. C. narrowly and to hold that the decree. as in the Present case. cannot be termed as an ex parte decree because the Procedure under Order 9. Rule 6 C. P, C. has not been followed.
7. The learned counsel for the respondent invited my attention to the decision reported in Prativadi Bhavankaram Pichamma v. Kamisetti Sreeramulu ILR(1918) Mad 286: AIR 1918 Mad 143 . Naearatnam Pillai v. Kamalafharnmal. AIR 1945 Mad 299. Munnalal v. Jai Prakash, : AIR1970All257 and M. S. Khalsa v. Chiranjilal : AIR1976All290 . Only one of these cases deals with Order 8. Rule 10 C. P. C. and that is the decision in Nagaratnam Pillai v. Kamalathammal, AIR 1945 Mad 299. Though the question that arose for consideration in that decision was whether the default in filing the written statement mentioned under Order 8, Rule 10 C. P. C. was confined to those cases mentioned in R. 9 or would take in also other cases cover7, ed by Rule 1. the learned Judges of the Division Bench had also occasion to express the nature of such an adjudication under Order 8, Rule 10, C. P. C. In that case also. the written statement was not filed by the first defendant who floured as the appellant before this court on the day fixed for that namely 31-1-1944. But an application ravine for further three months time for filing the written statement was filed and this request was rejected on 2-2-1944 and a judgment was Passed against the appellant on the very same day, In dealing with the effect of such a judgment, the Bench, after holding that Rule 10 contemplates cases falling under Rule 9 only and not Rule 1. Observed thus:-
'We are accordinly 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 6et aside, -and it will be deemed to be a decree Passed against the appellant because the appellant was ex parte. (underlining -nine) From the above observation of the Bench. it is obvious that even in a case where the court acts under, the provisions of Order B. Rule 10 C. P_ Q. and proceeds to pass a judgment against the defendant for his failure to file a written statement. such a decree is only an ex parte decree, which would Within the scope of Order 9. Rule 13 C. P. Q that a decree passed under Order Rule 10 C. P. C. is an ex parte one is also made clear by the circumstances that there is no admission of the liability of the defendant for the claim made in the suit as in cases covered under Order 37. Rule 1. C. P. C. wherein if there is a failure on the Dart of the defendant to obtain leave to defend the suit -he shall be deemed to have admitted the plaint allegations and the court has no other option except to pass a decree against him. Such is not the position in cases falling under Order B. Rule 10 C. P.C. The application of the provisions of Order 8. Rule 10 C. P. C_ results in a decree not by admission but owing to the default of a defendant to file a written statement which in its real meaning. and substance is only an ex parte decree.
The court below was, therefore, quite right in construing the decree passed in the instant case on 28-7-1978 as on ex Parte decree and in proceeding to set it aside on payment of costs by the respondent to the petitioner.There is absolutely no error of jurisdiction or other illegalitv in the order of the court below. The civil revision petition. therefore fails and is dismissed with the costs of the respondent.
8. Petition dismissed.