MATHES TRADING CO Vs. RELISH FOODS P LTD

JUDGEMENT

(1.) 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.) 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.