M. P. CHANDRAKANTARAJ, J.

( 1 ) THIS revision petition is directed against the order dt. 19-8-1988 made in Misc. Case No. 10/1985 on the file of the Civil Judge, Mangalore, Dakshina Kannada District. That petition was one made under O. IX, R. 13 of the C. P. C. The prayer therein was to set aside the ex parte decree passed on 28-2-1985 in S. C. No. 376/1983 on the file of that Court. On the pleadings in the said miscellaneous case, the lower Court formulated the following three points for consideration : (1) Whether the decree passed in S. C. No. 376/1983 on the file of this Court dt. 28-2-1985 is an ex parte decree? (2) Whether the petitioner proves that he was prevented from attending the Court and his advocate's office due to family dispute and illness and he had a sufficient cause in not attending the Court during the month of January and February, 1985? (3) Whether the petition is barred by time?on all the points for consideration, the Court held against the petitioner. Therefore, the present revision petition. In this Court, when the matter was heard last time, I recorded the following in the order sheet :"the short question which falls for consideration in this revision under S. 18 of the Karnataka Small Causes Courts Act is : whether in the absence of a written statement not filed intentionally and in the absence of appearance of defendant on the adjourned date of hearing, if a decree comes to be passed after examining the plaintiff without the counsel for defendant retiring from the case, it amounts to an ex parte decree or a decree on merits in terms of O. 17, Rr. 2 and 3, C. P. C. ? however, after this matter was heard for some time, it is pointed out that the small cause suit was filed for eviction of the defendant from the premises occupied by him as a tenant. Already five years have lapsed since the filing of the suit. Whatever may be ultimate view of this Court on the question which it is required to answer, great injustice will be done to the landlord if proceedings are procrastinated further for whatever reason. Mr. Bhatta learned counsel for the respondent-plaintiff has no objection to give further reasonable time for the tenant to vacate. Mr. Acharya has also no objection to consult his client in this matter to explore whether there is possibility of settlement out of Court. "therefore, the matter stood adjourned and has come up for further hearing today.

( 2 ) THE facts set out are not in dispute. The petitioner was represented on the date the plaintiff was examined in support of his plea even in the absence of there being no written statement. It was however argued by Mr. B. V. Acharya, learned counsel for the petitioner, that mere presence of the advocate cannot be held to be effective representation of the defendant as held by some of the High Courts unless such pleader is duly instructed and able to answer all material questions relating to the suit or by pleader accompanied by some person able to answer all such questions, cannot be said to be an error by a pleader, if the pleader appears on the date of hearing and states that though he has filed his vakalathnama, he has not received instructions in regard to the case and that he is therefore unable to go on with the suit. The learned author has relied upon some earlier decisions starting from AIR 1889 up to 1942 rendered by the various High Courts in support of the provision founded on O. 5, R. 1 of the C. P. C.

( 3 ) I do not think that those decisions or those views will be of much assistance to the petitioner in the light of the amendment made to the C. P. C. in 1976 providing R. 10 of O. 8 enabling the Court to pass an order proceeding to judgment or pass any appropriate order, moment there is failure to file a written statement. Such contingency may arise on the occurrence of two events; when the defendant fails to appear and when there is no written statement filed, even though he may have entered appearance despite chances given. A Division Benc

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