SHRAWAN KUMAR YADAV Vs. SWARNDEO PRASAD MAHTO

JUDGEMENT

(1.) THIS miscellaneous appeal is directed against the order dated 1.12.97 passed by IIIrd Sub - Judge, Madhepura, in Misc. case no. 18 of 1996.

(2.) THE aforesaid misc. case was filed in the lower court under Order 9, Rule 13 read with Section 151 C.P.C. for setting aside the ex parte decree passed in Title Suit No. 27 of 1994. The aforesaid misc. case was dismissed on the ground that it was not maintainable under Order 9, Rule 13.

(3.) I find that the court below stated in its impugned order that the applicant -appellants had filed the aforesaid misc. case on the grounds that when the suit was heard, they were prevented by floods in the area from attending the court. So, when they learnt about the ex parte decree they filed the misc. case. Earlier they had appeared in the trial court and prayed for time to fife W.S. which was rejected. The court has further stated in its impugned order that earlier there was a petition under Order 9, Rule 7 C.P.C. which was rejected on the ground that the petition was not properly affidavited.The court finally opined that the petition under Order 9, Rule 13 CPC was not maintainable because the judgment was pronounced when they failed to file W.S. as ordered by the court. Perhaps, the court felt that the judgment was pronounced against the applicant - appellants under Order 8, Rule 10 C.P.C. Although the lower court has not stated specifically that the judgment passed against the appellants was under Order 8, Rule 10, but it appears from the import of the impugned order that the judgment was passed against the appellants under the provision of Order 8, Rule 10 C.P.C. It is, perhaps, under this impression that the lower court held that petition under Order 9, Rule 13 C.P.C. was not maintainable. However, from the impugned order, it also transpires that some of the defendants were in appearance and during the course of hearing they participated in the proceedings. So, it were only the appellants who had not attended the proceedings of the suit. However, I am of the opinion that Order 8, Rule 10 C.P.C. presents a situation when a particular defendant fails to file W.S. in spite of direction given by the court within the time fixed by it; and in that case, the court is empowered to pronounce judgment on the basis of plaint itself without proceeding to take evidence on behalf of the plaintiff. The aforesaid provision is a penal provision and judgment is pronounced on the plaint in default of the defendants filing answer to the assertion of the plaintiff in denial or rebuttal of the same. But once the defendants appeared in answer to the summons and the court directs the plaintiff to adduce evidence in proof of its case, the provisions of Order 8 are no longer applicable and thereafter the suit proceeds under the provisions of Order 9. In such a case, if the defendant does not appear on the date when the suit is called on for hearing, the court may proceed ex parte against non - appearinig defendants and pronounce judgment on the basis of ex parte evidence. So, Order 9, Rule 13 C.P.C. has given an opportunity to non -appearing defendant or defendants to seek setting aside of the ex parte decree on sufficient cause that prevented them from appearing in the suit which was called on for hearing. It is for the defendants to prove the sufficient and good cause which prevented them from participating in the proceeding of the suit. But unless the petition under Order 9, Rule 13 C.P.C. is admitted and the defendant -applicant is given an opportunity to satisfy the court that he was prevented by sufficient cause from appearing and attending the proceeding of the suit, the application cannot be dismissed in limine. I find that in the instant case, this was the position and the lower court dismissed the misc. case just by saying that it is not maintainable. The grounds on which the court has based its decision do not appear to be tenable and valid under the facts and circumstances of this case.