In a case where a decree was passed under Order 8, Rule 10 for failure of the defendant to file a written statement, an Order 9 Rule 13 petition is maintainable.

Pareed Pillay, C.J.

Appellant who is the plaintiff in O. S.72 of 1987 of the Additional Sub Court, Alleppey challenges the order in I.A.724 of 1988. The Interlocutory Application was filed by the respondent (defendant) under O.9 Rule 13 C.P.C. to set aside exparte judgment and decree. The application was allowed by the trial court on payment, of costs Rs.100/-.

2. Contention of the plaintiff is that the interlocutory application under O.9 Rule 13 is not maintainable as decree was granted in its favour under O. 8, R.10 C.P.C. on the failure of the defendant to file its written statement. It is contended that as the defendant was not declared ex parte and as the decree has been granted as aforesaid the interlocutory application was not legally maintainable and the only course open to the defendant was to have filed appeal before the proper court.

3. On 24-5-1988 the suit for realisation of money was decreed. On previous occasions the trial court granted time to the defendant to file written statement. On 24-5-1988 defendant's counsel applied for time. That was vehemently opposed by the plaintiffs counsel. The Sub judge did not grant further time and he pronounced the judgment as required under Order 8 R.10 C.P.C. Exts. Al to A5 were marked. Holding that plaint claim stands proved plaintiff was granted decree to recover the suit claim with 6% interest from the date of suit till realisation.

4. The question that arises for consideration in this case is whether interlocutory application filed under Order 9 Rule 13 C.P.C. is maintainable or not. In other words, contention of the plaintiff that the only course open to the defendant is to have filed appeal against the judgment and decree has to be considered.

5. Order 8 Rule 10 provides that where any party from whom a written statement is required under R.1 or R.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. Order 8 Rule 1 enjoins the defendant to file his written statement of defence at or before the first hearing or within such time as the Court may permit. Rule 9 postulates that no pleadings subsequent to the written statement of a defendant other than by way of defence to a set-off or counter claim shall be presented except by the leave of the court and upon such terms as the court thinks fit. Certainly the Court can require written statement or additional written statement from the defendant and fix a time for presenting the same. Rule 10 enables the Court to pronounce judgment against the defendant if he fails to present the written statement within the time permitted by the court. On the pronouncement of such judgment a decree has to be drawn up.

6. Thus, from a reading of the above provisions it can be seen that the defendant as a matter of right can file written statement at or before the first hearing or within such time as permitted by the Court. Rule 9 enables the Court to require written statement or additional written statement within a specified date. In a case where the defendant failed to file written statement Rule 10 comes into play. As already noted, Rule 10 enables the Court to pronounce judgment on the basis of the evidence before it.

7. In such a case whether defendant can file petition under O.9 Rule 13 to set aside the judgment and decree on the ground that it is an ex parte judgment against him or that he has to file appeal against it arises for consideration. In Haridas v. Madhavi Amma (1987 (2) KLT 701) Padmanabhan, J. held that decree passed under O.8 Rule 10 can be set aside under O.9 R.13 and appeal alone is not the remedy available to the party aggrieved. He held thus:

"The mere fact that there is right of appeal against the ex parte decree is no reason to hold that an application under O.9 Rule 13 is not maintainable Remed