A decree passed in terms of Order VIII Rule 10 of CPC, on failure of the defendant to file a written statement despite many adjournments, cannot be termed to be an ex parte decree within the meaning of Order IX Rule 13 of CPC.

S. J. Mukhopadhaya, J.

1. The plaintiff-respondent-petitioner has challenged the order dated 7th of September, 1995 passed by the learned District judge. Katihar in Misc. Appeal No.8/94. By the impugned order and judgment the appellate court set aside the order dated 30th of September, 1994, which was passed by the learned Munsif, katihar in Misc. Case No.18/93.

2. The plaintiff-petitioner filed one title (Eviction) Suit No.14/89 for eviction of defendant-opposite party. The suit was finally decreed on 22nd of february, 1993. Subsequently the defendant-opposite party filed an application under Order IX, Rule 13 of C. P. C. on the ground that the judgment and decree was passed ex parte without giving any proper hearing to the defendant. The same was registered as Misc. Case No.18/93. After hearing the parties the learned Munsif, Katihar dismissed the same. The defendant opposite party thereafter preferred misc. Appeal No.8/94 against the said order dated 30th of September, 1994 passed in Misc. Case No.18/93. The appeal has been allowed by the impugned order and judgment dated 7th of September, 1995, which is under challenge in the present revision application.

3. The counsel for trie plaintiff petitioner mainly placed reliance on the order dated 30th of September, 1994 passed by the learned Munsif, Katihar in misc. Case No.18/93. It is stated that after notice and summons the defendant-opposite party appeared in the title Eviction Suit No.14/89 and sought time to file written statement. The case was adjourned on different dates at the request of the defendant-opposite parties and/or as the opposite party was absent. The list of such dates has been shown in Annexure-1 to the revision application. On different dates, including 7th of June, 1990,16th of July, 1990, 8th of November, 1990, 3rd of December, 1990 and 6th of August, 1991 etc. the trial court while adjourned the case on the request of the defendant-opposite party with cost, but the defendant even did not choose to pay costs on the subsequent dates. Ultimately, the matter was ordered to be placed for hearing on 19th of August, 1992 and then argument in the suit started since 22nd of September, 1992. The judgment and decree was passed thereafter on 22nd of February, 1993.

4. Two questions were raised by the plaintiff-petitioner while objecting the aforesaid Misc. Case No.18/93, namely, (a) there was no sufficient cause shown by the defendant to allow the miscellaneous appeal in his favour and (b) the petition under Order IX, Rule 13 of c. P. C. was not maintainable, the judgment and decree not being an ex pane decree, the case having been decided in terms with Order VIII, Rule 10 of C. P. C

5. The learned Munsif, Katihar by order dated 30th of September, 1994 while did not choose to give any benefit in favour of the defendant-opposite party relating to absence on the ground of prevention from sufficient cause. It further held that the petition under order IX, Rule 13 of C. P. C. was not maintainable. The appellate court after discussion of relevant evidences came to its own separate finding that the defendant-opposite party was prevented from sufficient cause from attending the court and filing written statement, being under treatment since 8th of September, 1991 to 24th of July, 1993.

6. The counsel for the defendant-opposite party submitted that though the case having been decided in terms of order VIII, Rule 10 of C. P. C. , but the defendant having failed to submit the written statement being prevented for sufficient cause, the judgment is to be treated as an ex pane judgment for all purposes and thereby the petition under order IX, Rule 13 of C. P. C. was maintainable. He relied on a Division Bench decision of the Delhi High Court in the case of Gujrat Co-operative Oil Seeds growers Federation V/s. Smt. Ramesh kanta Jain (A. I. R.1994 Delhi page 367)and Supreme Court decision in the case of Prakash Chandra Manchanda and another V. Smt. Janki Manchanda, AIR 19