The main legal point established is the importance of adhering to the procedural requirements under the Civil Procedure Code and the responsibility of the Advocate in filing necessary applications.

1. This appeal is focussed at the instance of the defendants as against the judgment and decree dated 03.12.2008 passed by the learned Additional District Judge, Fast Track Court No.II, Salem in I.A.No.823 of 2008 in O.S.No.136 of 2007.

2. The long and short of the germane facts, in a few broad strokes, for the disposal of this appeal can be encapsulated thus:

(i) The respondent/plaintiff herein filed the suit informa pauperis seeking the following reliefs:

a) To permit him to sue informa pauperis

b) Decree the suit by directing respondent/defendant to pay a sum of Rs.10,19,375/-to the petitioner and

c) Direct the respondent/defendant to pay interest by way of damages at 18% p.a for the suit claim from the date of suit till the date of payment.

d) Direct the respondent/defendant to pay the court fee payable on the plaint and award cost of suit to plaintiff.

(ii) The appellants herein, who happened to be the defendants therein filed necessary counter and contested the pauper O.P. Whereupon, the POP was allowed and the matter was taken up as a suit.

(iii) Opportunity was given to the defendants to file written statement, but that was not filed as contemplated under Order 8 Rule 1 of the Code of Civil Procedure. However, the court on 10.03.2008 setting the defendants exparte passed an exparte decree.

(iv) Being aggrieved by and dissatisfied with the same, this Civil Miscellaneous Appeal has been filed on various grounds.

3. The learned counsel for the appellants/defendants would advance his arguments, which could tersely and briefly be set out thus:

(a) The learned Advocate who appeared for the defendants was engaged in his son's marriage; wherefore, he could not file the written statement within the stipulated period.

(b) No doubt, the Advocate himself who was responsible for such delay filed an affidavit; but the lower court looked askance at it and simply rejected the same.

(c) The said exparte judgment was not one on merits.

(d) Without considering the pro et contra, simply the suit was decreed exparte based on the documents marked on the side of the plaintiff.

Accordingly, he would pray for setting aside the exparte judgment and decree of the lower court and for giving an opportunity to contest the matter.

4. In a bid to torpedo and pulverise the arguments and pleas as put forth and set forth on the side of the appellants/defendants, the learned counsel for the respondent/plaintiff would advance his arguments, which could concisely and precisely be set out thus:

(i) The trial court returned the application under Order 9 Rule 13 of the Code of Civil Procedure with the following endorsement:

"The exparte decree was passed only non filing of WR. Therefore written statement to be produced along with the petition. Retd.time 4 weeks."

(extracted as such)

(ii) However, the defendants took the stand as under:

"There is an earlier proceeding in respect of the same subject matter involved in the proceedings pending before the Calcutta High Court in Title Suit No.449/04 is admitted by both parties. After receipt of summon the present suit is filed as pauper and it was number as suit. So the defendant has filed an I.A.No.786/05 before this Hon'ble Court under Section 10 of CPC for staying the proceedings. Both the suit and the IA called together and by over sight without taking the I.A.786/05 this court has passed an exparte decree on 18.03.08.

Since the stay petition in I.A. 786/05 has to be decided first, this defendant not in a position to file the written statement along with petition.

Hence represented."

(extracted as such)

Subsequently the lower court numbered the application and after hearing both sides, dismissed the application correctly, warranting no interference in this appeal.

5. The points for consideration are as under:

1. Whether the Advocate concerned was justified in filing the affidavit along with the application under Order 9 Rule 13 of CPC without filing the affidavit of any one of his c