GIRISH CHANDRA GUPTA, J.

( 1 ) THIS revisional application under Section 115 of the Code of Civil procedure is directed against an appellate order dated 18. 7. 1995 by which the appellate Court afirmed a judgment and order dated 13. 6. 1994 passed by the Trial Court holding that an application under Order 9. Rule 13 of the code of Civil Procedure is not maintainable where a suit has been decreed under Order 8, Rule 10 of the Code of Civil Procedure. The facts of the case would best be described by quoting two relevant paragraphs from the judgment of the appellate Court which read as follows :"it is an admitted position that the learned Court below granted several adjournments to defendant to file written statement and lastly he rejected the prayer of the defendant and accordingly fixed for ex- parte hearing i. e. , on 8. 9. 1993 the defendant/petitioner filed the same adjournment petition with the prayer for setting aside the ex parte hearing of the suit but as the said-petition was not moved the suit was heard ex parte. The learned Munsif after hearing the parties came to the conclusion that when the suit was heard ex parte under Order 8, rule 10 of the Code of Civil Procedure the petition under Order 9, rule 13 of the Code of Civil Procedure is not maintainable. "

( 2 ) THE question of law which falls for determination therefore can be formulated as follows :"is an application under Order 9, Rule 13 of the Code of Civil procedure maintainable where a suit has been decreed under Order 8, Rule 10 of the Code of Civil Procedure ?"

( 3 ) FOR a just decision of the controversy it would be apposite to notice the provisions of Order 8, Rule 10 of the Code of Civil Procedure which provide as follows :"10. Procedure when party fails to present written statement called for by Court.-Where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up. "

( 4 ) THIS is a provision which enables the Trial Court to pronounce judgment where the defendant fails to file a written statement within the time originally granted or within the extended time. This provision also authorises the Court to decree a counter claim in case the plaintiff fails to file a written statement in reply to a claim made in a defence set up by the defendant by way of set off or counter claim. Judgment can also be pronounced under this provision against the defaulting party i. e. , either the plaintiff or the defendant who may have been directed by the Court to file an additional written statement and has failed to do so.

( 5 ) IT would at this stage be convenient to notice sub-rule (2) of Rule 5 of Order 8 of the Code of Civil Procedure which enables the Trial Court to pronounce a judgment based on the theory of non-traverse where the defendant failed to file a written statement:"where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved. "

( 6 ) OTHER similar enabling provisions are to be found in Order 10, rule 4 and Order 16, Rule 20 of the Code of Civil Procedure which may also be noticed in this regard :"o. 10,r. 4. Consequence of refusal or inability of pleader to answer.-{1) Where the plea'der of any party who appears by a pleader or any such person accompanying a pleader as is referred to in Rule 2, refuses or is unable to answer any material question relating to the suit which the Court is of opinion that the party whom he represents ought to answer, and is likely to be able to answer if interrogated in person, the Court may postpone the hearing of the suit to a day n

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