MATHAI Vs. CHERIAN

JUDGEMENT

(1.) Defendant 2 in O.S. No. 150 of 1121 on the file of the Alleppey District Court has preferred this appeal against an order refusing to accept his written statement after vacating an order declaring him ex parte. On 28.1.1122 he entered appearance in the suit and asked for time for filing his written statement. Thereafter he took several adjournments for the said purpose until at last the Court refused further adjournment and declared him ex parte. This order was passed on 31.10.1122. Very nearly two years afterwards on 28.6.1124 he filed his written statement together with an application to receive the same. The suit was still pending and even now it remains undisposed of. The reason for his failure to file the written statement earlier has been attributed to his illness during the relevant period. The court however rejected his prayer and the appeal is from that order.

(2.) The first point that we desire to mention is that no appeal lies from an order refusing an application under O.9 R.7 C.P.C. An appeal is provided against an order rejecting an application under O.9 R.13 but the present order is not one such. No decree has yet been passed. However we do not seek to dispose of the matter on this preliminary ground. The respondent did not raise this objection. Regard being had to a long line of cases bearing on the law applicable to applications like that defendant 2 filed on 28.6.1124 we consider this to be a proper case where in the exercise of our revisional jurisdiction we should set aside the lower Court's order and direct that court to accept the written statement tendered by the appellant and proceed with the trial of the suit.

(3.) The appellant'produced in this Court a medical certificate along with his appeal to account for the delay in filing the written statement. On 28.6.1124 when the appellant filed his written statement in the suit, the suit had not passed the stage of first hearing and in consonance with justice for those administration alone Courts exist the lower Court should have accepted the written statement and proceeded with the trail of the suit. Where a defendant wants to be heard only from the stage at which the case stands at the time of his appearance 'the good cause' condition in O.9 R.7 has no application is well established on authorities. A recent Division Bench ruling of this Court reported in (1951) 6 DLR TC 467 reiterated this position. That case refers to the decisions in AIR 1925 Mad. 1274 and AIR 1927 Mad. 1197 . The decision of Varadachariar, J. (as he then was) in AIR 1939 Mad. 385 is yet another Madras decision bearing on the point. The case in 18 Cochin 561 is a case almost on all fours with the present case. No doubt the number of adjournments the defaulting defendant had taken in that case was not so large as that in this case but that has no bearing on the point of law. That case besides referring to AIR 1925 Mad. 1274 refers to two Allahabad decisions both reported in 20 Allahabad Law Journal, one at page 39 and the other at page 270. The facts in 20 Allahabad Law Journal 270 were similar to the facts in the present case and in the Cochin case referred to above. The Nagpur High Court had occasion to construe O.9 R.7 in a decision reported in AIR 1948 Nag. 362 and that case shows the approach different High Courts have from time to time made to applications similar to the one the learned Judge in the Court below had before him in this case.