NAGARATNAM PILLAI Vs. KAMALATHAMMAL

JUDGEMENT

(1.) THIS is an appeal by the first defendant against the judgment of the learned Subordinate Judge decreeing O.S. No. 47 of 1943, as against the appellant. The appeal is filed under Order XLIII, Rule 1(6)of the Code of Civil Procedure which provides a right of appeal from an order under Rule 10 of Order VIII, pronouncing judgment against a party. The judgment does not say specifically that it is being pronounced against the first defendant under that order; and because this is so, a preliminary objection was raised on behalf of the plaintiff that no miscellaneous appeal lay and that the appellant's only right was to file a regular appeal and pay the required court -fee. We have found against this preliminary objection. Although the language of paragraph 2 of the judgment is somewhat ambiguous and refers not only to the failure of the appellant to file his written statement in time, but also to the fact that at the trial on the second February 1944 he did not appear, it seems clear to us that this judgment must be regarded as essentially passed against the appellant because he did not file his written statement by the 31st January, as called upon to do by the Court. There is no doubt that when he was called upon to file a written statement by the 31st January, he was definitely warned that if he did not do so judgment would be pronounced against him under Order VIII, Rule 10. It seems therefore to us reasonable to construe the judgment and decree in this case as recording an action of the learned Subordinate Judge taken under Order VIII, Rule 10. The appeal, therefore, cannot be said to be incompetent under Order XLIII, Rule 1(b).

(2.) IT is of course, common ground that the written statement was not filed on the, 31st January. On that day, the appellant filed an application asking for a further three months' time for filing his written statement. That application was supported by an affidavit from a cousin of the appellant and a medical certificate granted on the 30th January, in Trichinopoly. The medical certificate said that the appellant was suffering from mental worry and high blood pressure, and in the opinion of the doctor, could not do any intelligent mental work for another three months. He required peace of mind and complete rest. The learned Judge passed orders on the 2nd of February, rejecting the application. He held that the facts in the case did not show that the appellant was in such a position that he was unable to attend to his share in the preparation of the written statement. We see no reason to differ from the discretion of the learned Subordinate Judge in refusing the application, and would point out further that, on the 31st January, there appears to have been no attempt made to obtain any affidavit from an advocate to show that the advocate whose primary duty, as we conceive it, is to prepare the written statement on behalf of his client, made any attempt to do so which was frustrated by the client's state of health. We are therefore not prepared to allow this appeal on the ground that the learned Judge erred in his discretion in refusing the application.