JUDGMENT - M.B. SHAH, C.J.:---The learned Single Judge by his order dated 10th November, 1997 has referred the matter to a Division Bench for deciding question "whether a decree passed in the absence of the defendant and his Counsel is a decree passed under Order IX, Rule 6 or is it a decree passed under Order VIII, Rule 5 if the same is also passed on the ground that the written statement has not been filed."

2.Main controversy is that whether a decree passed under Order VIII, Rule 5 or 10 of the Code of Civil Procedure) (C.P.C., for short) can be set aside by filing an application under Order IX, Rule 13 of C.P.C. The learned Judge has referred to various decision of this Court, wherein justice Lodha Vyas, as he then was, Justice Palshikar and Justice Lodha have taken the view that a decree under Order VIII, Rule 5 can only be passed in presence of the defendant, on account of failure to file Written Statement. Justice Kapadia has held that a decree under Order VIII, Rule 5 can be passed even in absence of defendant. From the referring judgment, it appears that a contention was raised that such a decree passed under Order VIII, Rule 5 can be set aside by filing an application under Order IX, Rule 13 of C.P.C. Other judgments are to the effect that only appeal is required to be filed. Because of the contrary judgments, the matter is referred to a larger Bench.

3.At the outset, we note that the learned Single Judge, in case of (Rashtriya Chemicals and Fertilizers Ltd. v. Ota Kandla Pvt. Ltd.)1, reported in 1992 Mah.L.J., page 1266, arrived at the conclusion that where the defendant is served and represented by Counsel, but fails to file his written statement despite opportunity given to him, the decree passed against him would be one under the provisions of Order VIII, Rule 10 of the C.P.C. For setting aside such decree, an application under Order IX, Rule 13 is not maintainable.

Against that judgment appeal was preferred and the Division Bench of this Court (P.D. Desai, C.J. S.H. Kapadia, J.,) had dismissed the aforesaid Appeal by holding that:-

"We are in agreement with the reasoning and conclusion of the learned Single Judge. This is not a case in which the decree could be regarded as having been passed ex-prate and, therefore, Notice of Motion No. 1735 of 1990 taken out by the appellants to have the decree set aside was rightly held to be not maintainable"

Further the aforesaid case of Rashtriya Chemicals and Fertilizers Ltd. v. Ota Kandla Pvt. Ltd., was also referred by the Division Bench of this Court. (Ms. Sujata Manohar, C.J., Dr. B.P. Saraf, J.,) in (Appeal No. 169/94 decided on 31st March, 1994)2, and the Court has held that there was no reason to take a different view from the one taken by the learned Single Judge.

4.We also do not find any reason to differ from the view taken in the case of Rashtriya Chemicals and Fertilizers Ltd. (supra) for the reasons stated below.

5.For this purpose, we would straightaway refer to the exhaustive decision on Order IX of C.P.C. of the Apex Court in the case of (Sangram Singh v. Election Tribunal, Kotah and another)3, reported in A.I.R. 1955 S.C. 425. The Court in that case specifically referred to Order V, Rules, 1, 5 8 which provide for what is required to be stated in the summons. Thereafter, the Court considered that Order VIII, Rule 1 specifically speaks of "the first hearing". As against this, Order IX speaks of "Appearance of parties and consequence of non-appearance".

6.In the light of the aforesaid provisions, this controversy is required to be appreciated. Under Order VIII, Rule 1, the defendant is required to file Written Statement of his defence at or before the first hearing or within such time as the Court may permit. Sub-rule (2) of Rule 1 requires the defendant to enter such documents in a list and to annex it with the Written Statement. Rule 5 specifically provides that every allegation of fact in the plaint, if not denied in the pleading of the defendant, sh

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