The main legal point established in the judgment is the interpretation and applicability of the provisions of Order 8 Rule 5, Order 8 Rule 10, and Order 9 Rule 13 of the Code of Civil Procedure in setting aside an exparte decree.

The petitioner-original plaintiff has filed the present writ petition being aggrieved by the order dated 02.04.2013 passed by the first appellate Court allowing the appeal filed by the respondent nos. 1 and 2 and setting aside the judgment and decree passed in Regular Civil Suit No. 35 of 2005.

2. The facts in so far as the same are relevant are that, the petitioner is the owner of the suit premises which is occupied by the respondent nos. 1 and 2 as tenant paying monthly rent of Rs.3085/. The petitioner issued notice dated 02.12.2004 and terminated the tenancy of the respondents. Thereafter, suit for possession of the property in question came to be filed on 14.01.2005.

3. On being served with the suit summons the respondent nos. 1 and 2 appeared before the trial Court and sought time to file written statement. Time came to be granted vide orders passed below Ex. 11,12,13. However, the application seeking time to file written statement vide Ex. 14 came to be rejected on 07.07.2005 and the case was thereafter fixed for no written statement evidence. The petitioner thereafter filed his affidavit in lieu of evidence. Subsequently, he also filed certain documents on record. Thereafter the plaint also came to be amended. After grant of sufficient time thereafter, the plaintiff was examined but he was not cross examined by the defendants and ultimately by judgment dated 24.10.2007 the suit came to be decreed.

4. The respondent Nos. 1 and 2 thereafter filed proceedings for setting aside the exparte decree along with application for condonation of delay. The delay came to be condoned by imposing costs of Rs. 3000/on the respondent nos. 1 and 2. The Small Causes Court however rejected the application filed under provisions of Order 9 Rule 13 of the Code of Civil Procedure (for short the Code) on the ground that despite sufficient opportunity the written statement had not been filed. It was further held that application under provisions of Order 9 Rule 13 was not maintainable.

5. The respondent Nos. 1 and 2 being aggrieved by said order filed Miscellaneous Civil Appeal challenging the same. The first appellate Court recorded a finding that the plaintiff had filed his affidavit evidence and the suit was thereafter decided. It was not the case of the decree being passed under provisions of Order 8 Rule 5 and Rule 10 of the Code. It, therefore, set aside the exparte decree by allowing the Miscellaneous Civil Appeal. Being aggrieved by aforesaid adjudication, the petitioner-original plaintiff has filed the present writ petition.

6. Shri Anjan De, learned counsel appearing for the petitioner submitted that the first appellate Court erred in setting aside the judgment of the trial Court. According to him as no written statement came to be filed by the respondent nos. 1 and 2, the trial Court was justified in proceeding further and thereafter deciding the suit. It was submitted that provisions of Order 8 Rule 5 of the Code permit filing of an affidavit in support of the claim and such affidavit had been filed by the petitioner. It was, therefore, urged that the provisions of Order 9 Rule 13 were not at all applicable and hence the impugned judgment could not be sustained. In support of said submission the learned counsel for the petitioner relied upon the judgment of the Division Bench in Dhanwantrai R. Joshi & others Vs. Satish J. Dave & others 1998(3) Maharashtra Law Journal 924. According to him therefore the proceedings filed by respondent nos. 1 and 2 for setting aside the exparte decree were not tenable and the only remedy available was filing an appeal. It was then submitted that as the Court had observed that it was proceeding without written statement of the respondent nos. 1 and 2, it was not open for the first appellate Court to have treated the decree as passed as an exparte decree. Relying upon the judgment of learned Single Judge, in Jugalkishore Navalkishore Kothari Vs. Kamalkishore Onkarmal Rungta 2005 BCI 140, i