This revision petition under section 115 read with section 151 CPC and Article 227 of the Constitution has been filed against the order dated 19.9.88 passed by learned Sadar Munsiff No. 1, Dibrugarh in Misc. (J) Case No.8 of 1987 arising out of Title Suit No. 37 of 1986. The above Misc. Case was. registered on an application filed by the defendants who are petitioners in this petition, under Order 9 Rule 13 read with section 151 CPC.

2. The opposite parties herein filed the above title suit as plaintiffs against the present petitioners who were impleaded as defendants, for recovery of ! has possession from the suit premises and also for recovery of arrears of rent. After the summons were served, the present petitioners applied for time to file written statements which was granted. It has been alleged that the defendants-petitioner No.1, who is the sole proprietor of the firm viz defendent-respondent No. 2 is an old man aged about 76 years and also not keeping in good health. In the later part of 1986 he left for Calcutta for some urgent affairs of his bus-ness and he fell ill there and could not return to Dibrugarh to attend the Court. He was asked by the doctor to take complete rest. It has been alleged that in view of the above circumstances, he could not give necessary instructions to his lawyer and also could not procure the important documents Therefore, time was prayed for on different dates and ultimately Court fixed 11.6.87 as the last date for filing written statement. Qn that date also defendants-petitioners prayed for time which was rejected and the Court fixed 25.2.87 for exparte hearing. On that day also the defendants-petitioners prayed for vacating the ex parte order and also for further time which was refused and proceeded to try the suit ex parte. After examining one witness, the suit was decreed ex parte by order dated 25.2.87 vide Annexure 1. Being aggrieved, a petition under Order 9 Rule 13 read with section 151 CPC was filed for setting aside the ex parte decree and by the impugned order, the petition was rejected on the ground that it was not maintainable under Order 9 Rule 13. The said order is at Annex ure 2. Hence, the present petition.

3. An affidavit-in-opposition has been filed on behalf of the opposite parties denying all the allegations.

4. It may be stated that on 5.7.91, an application was filed for converting the present petition into an appeal. But at the time of hearing Mr. Sahewalla, learned counsel for the opposite parties submitted that even if the present revision petition is not maintainable, the learned counsel will not press this point. But in my opinion, this question as to whether against the above order a revision or an appeal will lie has to be decided for future guidance. As the petition under Order 9 Rule 13 was dismissed on the ground that it is not maintainable, the second question to be decided in the present dispute is whether such a petition is maintainable.

5. To decide both the points it is necessary to re-produce both amended and as well as unamended provisions of Pule 10 of Order 8 CPC as the ex parte order was passed under the above rule. The unamended provision of Rule 10 runs as follows :

"Where any party from whom a written statement is 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."

The above Rule 10 which was amended by the Amending Act of 1976 runs as follows :- "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 upon such judgment, a decree shall be drawn up." (emphasis supplied) It may be stated that by the above Amending Act of 1976, clause (b) of Rule 1 of Order 43 CPC was omitted. Regarding thi

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