P L D 1957 (W (PLP)

KAIKAUS. J.‑

The civil revision arises out of a suit for dissolution of marriage. The defendant appeared in answer to summons, for the first time, on the 9th of July 1956, having been served not personally but by affixation of summons on the outer door of his house and he requested for an adjournment on the ground that he had not received a copy of the plaint. The Court directed that he be furnished with a copy of the plaint and that he should file a written statement on the 20th of August 1956. On that date, no one appeared on behalf of the defendant and the Court passed the following order. " Sayed Shabir Husain, counsel for the plaintiff, present. The defendant is absent. He had personally appeared on the last date of hearing. Proceedings are declared ex parte against him. The case to come up on the 5th of October 1956, for ex‑parte proof. The proceedings against the defendant shall be regarded under Order VIII, rule 10, Civil P. C." On the 4th of October 1956, the defendant put in an applica tion purporting to be under Order IX, rule 7, Order XLVII, rule 1 and section 151 of the Code of Civil Procedure, with a prayer that the order passed on the 20th of August 1956, be set aside and that the defendant be permitted to file a written statement and to contest the suit. It was stated in this application that the defendant's non‑appearance on the date of hearing was due to the fraud of the plaintiff. The plaintiff, it was alleged, had eloped with one Muhammad Nawaz before suit, but had returned some days before the 20th of August 1956, and had represented that there was no need of any appearance on that date as the case would be dismissed in default. The defendant had, in consequence of this representation, not attended Court on that day. How ever, after the 20th of August 1956, the plaintiff had again eloped with the same Muhammad Nawaz. The learned Civil judge, who was trying the suit, did not consider it necessary to make any enquiry into the allegations contained in this petition and dismissed it on the sole ground that he had proceeded not under Order IX rule 6, but under Order VIII rule 10 of the Code of Civil Procedure, as the order of the 20th of August 1956, made clear. Learned counsel for the defendant contended before him that Order VIII rule 10 was not applicable as it could be invoked only in a case where a written statement had been ordered under rule 9, of Order VIII, Civil P. C. The learned Civil judge repelled this contention and dismissed the application holding that it did not lie under any of the three provisions mentioned above. This revision petition is directed against that order. So far as the interpretation of Order VIII rule 10 is, concerned, I would agree with the learned Civil judge that this rule covers the case even of the first written statement by the defendant. In order that the question of law may be properly appreciated, it is necessary to reproduce here the relevant rules of Order VIII, Civil P. C:‑ "Rule 1.‑The defendant may and, if so required by the Court, shall, at or before the first hearing or within such time as the Court may permit, present a written statement of his defence. Rule 9.‑No pleading subsequent to the written statement of a defendant other than by way of defence to a set‑off shall be presented except by the leave of the Court and upon such terms as the Court thinks fit, but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time for present ing the same. Rule 10.‑Where any party from whom a written statement is so required fails to present the same within the time fixed by the Court, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit." It will' be observed that rule 1 empowers the Court to direct the filing of a written statement by the defendant. By virtue of rule 9, a pleading subsequent to the written statement cannot be presented either by the defendant or by the plaintiff except by the leave of Court, but the Court has jurisdiction at all times to require a written statement or additional written statement from any party. Rule 10 enacts that if default is committed by the party from whom a written statement is " so required ", the Court may pronounce judgment against that party or make such other order as it thinks fit. The argument on behalf of the defendant is that the words "so required" refer only to the preceding rule, that is, rule 9. and, therefore, if only the provisions of rule 1 are violated, rule 10 is not attracted. The result of this interpretation would be that there would be no penalty at all in a case where the Court directs the defendant to file a written statement, but once he has filed a written statement, the Court may pronounce judgment against him if he fails to file an additional, written statement ordered by Court. At the same time, the plaintiff, when he is directed to file a written state ment, would always be liable to have his suit dismissed. This interpretation, which is apparently opposed to reason, is being sustained on the sole ground that the words "so required" are incapable of being interpreted so as to refer to rule

1. It is also urged that we cannot go into the reason why the legislature imposed a penalty in one case and omitted to apply in a similar case, and we have to be guided solely by the words used. Reliance is placed on A. K. Moopan v. A. Karupana (A I R 1928 Rang. 261) and the judgment of Seshagiri, J., in Rangasami v. Manickam (A I R 1918 Mead, 1165). On behalf of the respondent reliance is placed on the judgment of Ayling, J., in the above‑mentioned Madras case. Ayling, J., held that the words "so required" referred to rule 1 also, because the distance between rule 1 and rule 9 was only apparent, rules 2 to 8 being only explanations or amplifications of rule

1. I would, however, base my decision on a simple ground. Assuming that the words "so required" refer only rule 9, I would hold that even the filing of a first written statement is covered by the words of rule 9 so that a failure by the defendant to file the first written statement is a violation not only of rule 1 but also of rule

9. The words of this rule are very wide. They speak of the power of the Court to direct any party at any time to file a written statement or an additional written statement. Even if rule 1 or that portion of it which empowers the Court to direct the defendant to file a written statement did not exist at all, there would still be power in the Court to direct the filing of such statement by virtue of rule

9. The only objection that can be taken to this interpretation is that it assumes an over lapping of the two provisions. An argument as to overlapping would not even ordinarily be an argument of great force when its acceptance would lead to an interpretation which is opposed to reason but in this particular case the matter will become quite clear by a reference to wording of the compara tive provisions of the Civil P. C., of 7882. 1 reproduce below sections 110, 111, 112 and 113 of that Code :‑ "Section 110.‑The parties may, at any time before or at the first hearing of the suit, tender written statements of their respective cases, and the Court shall receive such statements and place them on the record. Section 111.‑If in a suit for the recovery of money the defendant claims to set‑off against the plaintiff's demand any ascertained sum of money legally recoverable by him from the plaintiff, and if in such claim of the defendant against the plaintiff both parties fill the. same character as they fill in the plaintiff's suit, the defendant may, at the first hearing of the suit, but not afterwards, unless permitted by the Court, tender a written statement containing the particular of the debt sought to be set‑off. The Court shall thereupon inquire into the same, and if it finds that the case fulfils the requirements of the former part of this section and that the amount claimed to be set‑off does not exceed the pecuniary limits of its jurisdiction, the Court shall set‑off the one debt against the other. Such set‑off shall have the same effect as a plaint in a cross‑suit so as to enable the Court to pronounce a. final judgment in the same suit both on the original and on the cross‑claim ; but it shall not affected the lion, upon the amount decreed, of any pleader in respect of the costs payable to him under the decree. Section 112.‑Except as provided in the last preceding section, no written statement shall be received after the 6tst hearing of the suit ; Provided that the Court may at any time require a written statement, or additional written statement from any of the parties, and fix a time for presenting the same Provided also that a written statement, or an additional written statement, may, with the permission of the Court, be received at any time for the purpose of answering written statements so required and presented. Section 113.‑If any party from whom a written statement is so required fails to present the same within the time fixed by the Court, the Court may pass a decree against him, or make such order in relation to the suit as it thinks fit." Section 110 is the comparative provision for rule 1, section 111 for rule 2, section 112 for rule 9 and section 113 for rule

10. It will be observed that in 1882 the power to direct the filing of a written statement existed only by virtue of section 112 (rule 9). Section 110 (rule 1) simply permitted all parties to a suit to file written statements. If a party failed to file a written statement in accordance with the orders of Court it was a violation only of section 112 (rule 9). The words "so required" in section 113 (rule 10) referred only to section 112 (rule 9) but need only have done that for a default could be committed only in respect of that section. When the Code of Civil Procedure was amended in 1908 the legislature, while retaining the empowering words of section 112, provided for the power of the Court to direct the filing of a written statement even in rule 1 (Section 110). It is quite clear that under the Code of 1882, a failure to file the first written statement was a violation of section 112 (rule 9) and attracted the penalty provided in section 113 (rule 10). In just reiterating the power granted by section 112 (rule 9) in rule 1 also, the legislature was not intending to enact that in future the failure to file the first written state ment was not to be subjected to any penalty. The authorities relied upon by the petitioner are not of any great help. In A. K. Moopan v. A. Karupana, there is no discussion at all. In Rangasami v. Manickam, the learned judges of the Division Bench differed. In neither case has the ground on which I have relied been discussed. While I agree that rule 10 is attracted even in respect of the failure to file a written statement, I do not at all agree that the learned judge could have dismissed the application of the defendent for setting aside his order without an enquiry into the allegations contained in it. The learned Judge has held that neither of the three provisions mentioned in the heading of the application, that is, Order IX rule 7, Order XLVII, rule 1, and section 151 is applicable and, therefore, there is no power in him to set aside his order declaring the defendant ex‑parse. So, according to the learned judge, once an order is passed under Order IX, rule 8, even though there be the best of sufficient causes for not filing a written statement, the defendent is left almost without a remedy. An appeal does not lie against such an order because appeal will lie under Order XLIII, rule 1 (b) if the order is one pronouncing judgment Interference in revision is in the discretion of the High Court and not the right of a party. There is no discussion in the order of the learned Civil judge as to why the three provisions mentioned in the application are inapplicable. I will consider, in the first place, whether the application could not be under Order IX, rule 7 which applies when the Civil Court has adjourned the hearing of a suit ex‑parte. The rule runs :‑ " Where the Court has adjourned the hearing of the suit ex‑parse, and the defendant, at or before such hearing, appears and assigns good cause for his previous non‑appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appear ance." Had not the hearing of the suit been adjourned ex‑parse ? Why is it that the rule should be regarded inapplicable ? Let me not be misunderstood. The order which Court passes under Order VIII rule 10, declaring a defendant ex‑parse, is in the nature of penalty for disobedience and is different from an order passed under Order IX, rule

6. It is an order which excludes the defendant altogether from participating in proceedings subsequent to the order. But this penal order may be passed in the presence of the party affected or in his absence and, in the latter case, it will be the result of the Court proceeding ex‑parse. Suppose the defendant was present in Court on the 20th of August, but failed to file the written statement. The Court could declare him ex‑parse by virtue of its powers under Order VIII, rule 10, but in that case the order would be passed after hearing the defendant. As the defendant was absent, the Court passed the order declaring him ex‑parte without hearing him and, therefore, in determining what was the penalty to be inflicted on account of the default of the defendant, it proceeded ex‑parte. The speaking, ex‑parte proceeding began not when the Court actually passed the order declaring the defendant ex‑pane, but when it proceeded to consider ex‑parte the penalty to be inflicted. Whenever the Court proceeds to pass an order ex‑parse on account of the absence of the defendant, the defendant has a right to apply for a rehearing of the matter on the ground that he had sufficient cause for non‑appearance. I may explain, however, that if in such a case the application succeeds the order passed ex‑parse is not finally pronounced as a wrong order. Only the matter is to be decided after hearing the party. For instance, in the present case, if the defendant succeeded in proving that there was sufficient cause for his non‑appearance on the 20th of August, all that will happen is that the Court, in determining what action is to be taken on account of the failure of the defendant to file a written statement, will first hear him. It may still pass an order declaring him ex‑parse if it is not satisfied that he had made all efforts, for the filing of written statement on that date, even though it was satisfied that for mere absence he had good cause. He may have been sitting outside the Court room and may not have entered the Court room because the orderly did not properly name the parties when calling the case. There would be good case for non‑appearance. But it may be shown that he had not brought a written statement with him and he may still be punished for this default. He would, however, have the right to be heard. Nor is there any good reason for holding that section 151 will not apply if Order IX, rule 7 did not. There is always inherent jurisdiction in a Court to grant hearing to a party in respect of an order passed in his absence if there was sufficient cause for non‑appearance. There is inherent jurisdiction to set aside ex‑parse orders in cases not covered by the different rules or Order IX. In the exercise of inherent jurisdiction the Court can pass all orders which justice demands should be passed unless the power of Court has been limited by a specific section or rule. This power existed in the Civil Court by virtue of the fact that it had jurisdiction to decide disputes as to civil rights before the Civil P. C., was enacted and is not the creation of that Code. Only it is now subject to the provisions of the Code. In the view I take, it is not necessary to consider whether Order XLVII rule 1 applies. I will only state that in a number of cases the view has been taken that one of the remedies available to a person, whose suit has been dismissed in default or against whom an ex‑parte order has been passed, is a review. It may be possible to argue that the fact that the Court would not have proceeded ex‑parte had it known the facts which were brought to its notice by the review application is " other sufficient reason " within the meaning of Order XLVII, rule

1. As a result, this revision petition is accepted and the order impeached is set aside. The petitioner shall now be allowed to file a written statement and the Court shall proceed with the trial of the suit in accordance with law. There is no order as to costs. Petition accepted, A. H.