A defendant who appears and prays for time to file a written statement is entitled to take part in the hearing of the suit without a written statement. The court cannot debar the defendant from taking part in the hearing by posting the case for exparte hearing.

This miscellaneous first appeal by the defendant under ORDER :43 Rule 1(d) of the Code of Civil Procedure (hereinafter called the Code) has arisen under these circumstances. The plaintiff-respondents filed a mortgage suit, no. 22 of 1964, against the appellant on 10.7.64. ORDER :no. 4, dated 25.8.64 shows that summons on the defendant was returned after service. ORDER :no. 5, dated 24.9.64, records the fact of service of notice of the suit by registered postcard on the defendant. On that date, he appeared through a lawyer and filed a petition praying for time to file written statement. Time till 24.11.64 was granted, and further time was granted on that date and on subsequent dates until 5.1.65 to file written statement, on which date also the appellant filed a petition praying for time to file written statement. On 5.1.65, as ORDER :no. 7 shows, the court rejected the time petition and posted and adjourned the suit to 18.1.65 "for exparte hearing". On 18.1.65, the appellant again filed a petition praying for time to file a written statement. The petition was rejected and the ORDER :passed was.-"Put up tomorrow for exparte hearing." On 19.1.65, the defendant did not appear. The suit was taken up for exparte hearing as ORDER :ed earlier and exparte decree was passed on 20.1.65.

2. The defendant thereafter applied under ORDER :9 Rule 13 of the Code for setting aside the exparte decree, chiefly, on the ground that the appellant was unavoidably engaged from 15.1.65 to 23.1.65 in the affairs of the marriage ceremony of his son and as such he could not come to Dhanbad before 23.1.65, and so his lawyer, in his absence, could not take any further step in the case. A rejoinder was filed by the respondents refuting this case of the appellant. The court below did not accept the case of sufficient cause for non-appearance on 19.1.65, as put up by the appellant and rejected his application filed under ORDER :9, Rule 13 of the Code, that is to say, it refused to set aside the exparte decree. Hence, the defendant has come up in appeal to this Court. It may be stated here that the value of the suit is more than Rs.21,000.

3. The finding of the court below on the question of sufficient cause was sought to be attacked by the appellant on several grounds, one of which was that the evidence adduced on his behalf in support of his case has not been considered by the court below. But, in the view which we have taken of the law in this case, we did not proceed to examine this contention of the appellant.

4. In our opinion, the ORDER :of the court below made on 6.1.65 or on 18.1.65 posting the case for exparte hearing was unwarranted and erroneous in law. ORDER :8, Rule 1 of the Code provides :

"The defendant may, and, if so required by the court, shall, at or before the first hearing or within such time as the Court may permit, present a written statement of his defence."

On the facts stated in the ORDER :sheet, it was not a case where the appellant was required by the court to file a written statement, and, therefore, it was not obligatory on him to do so. It was a case where he could file a written statement either at the first hearing or within such time as the court might permit. He did not put any written statement within the time permitted by the court, during the course of argument our attention was drawn to Rule 10 of ORDER :8 of the Code which says:

"Where any party from whom a written statement is so required fails to present the same within the time fixed by the court, the court may pronounce JUDGMENT : against him, or make such ORDER :in relation to the suit as it thinks fit".

There has been some difference of opinion in the courts in India as to whether the procedure prescribed in Rule 10 is attracted only when there is a failure on the part of the defendant to put in a written statement or an additional written statement, as required by the Code under Rule g, or whether the tenth rule is also attracted in a case where the defendant