P L D 1961 (W (PLP)

Sonabati Kumari v. Kirtyanand Singh A I R 1935 Pat. 306 and Nanhe v. Saiyad Tasadduq Husain 15 1 C 212 ref. Saeed‑ur‑Rehman for Appellant. Abaur Rasheed for Respondenty. Date of hearing : 30th March 1961. This appeal is directed against an order, dated' the 7th of November 1960, passed. by the Senior Civil Judge, Multan, by which he has pronounced judgment against the appellant under the provisions of Order VIII, rule 10, C. P. C. The suit against the appellant was filed on the 18th of May 1960 for recovery of Rs. 10,203‑13‑

0. The parties requested for time for a compromise, but ultimately on the 31st of October 1960 it was stated that a compromise could not be reached, whereupon the Court directed the present appellant to file his written statement by the 7th of November, 1960. On that date, it was found that the appellant had not filed his written statement. The Court observing that no reasonable cause was shown for this failure on the part of the appellant, proceeded to pass a decree against him for the amount in suit.

2. Two points have been put forward on behalf of the appellant : (a) that Order VIII, rule 10 is relatable to rule 9 of that Order and not to rule 1, with the result that it had no application to the present case, where the written statement had to be filed for the first time ; and (b) that the order passed by the learned Senior Civil Judge does not fulfil the requirements of a judgment as defined in section 2 (9) of the Civil Procedure Code.

3. It is common ground between the parties that the order dated the 31st of October 1960, directing the defendant‑appellant to file his written statement by the 7th of November 1960, was an order made under rule 1 of Order VIII and not under rule

9. The learned counsel far the appellant relies on Rangaswami Udavan v. Manickam Pillai (A I R 1918 Mad. 1163); Nagaratnam v. Kamalathammal (A I R 1945 ‑Mad. 299) and A. K. Moopan v. A. Karupana (A I R 1928 Rang. 261). In the 1918 Madras Case, the point was not finally decided as there was a difference of opinion between the two learned Judges comprising the Division Bench. Ayling, J. held that rule l0.appIies to rule 1 as well as to rule 9 and Seshagiri Aiyer, J. held to the contrary. In. the 1945 Madras Case, however the view of Seshagiri Aiyer, J. was followed and it was observed : "It seems to us very difficult to hold that the word "so" occurring in this context in rule 10 can possibly be related back to rule

1. It must, in our opinion, refer to something which is in close juxtaposition to itself and that can only be the provision of rule 9". In the Rangoon Case, the view was expressed that the written statement contemplated in rule 10 is one demanded under rule 9.

4. As against these authorities, there is, however, a recent ease of this. Court, namely, Ghulam Muhammad v. Sahiban (P L D 1957 Lah. 624), in which the matter was exhaustively considered by Kaikaus, J. and he came to the conclusion that rule 10 of Order VIII, C. P. C. covers the case even of the first written statement by the defendant under Order VIII, rule

1. It is true that A I R 1945 Mad. 299 was not cited before the learned Judge, but he has referred to AIR 191 & Mad. 1163 and AIR 1928 Rang.

261. I do not think it necessary to cover the same ground again and I respect?fully adopt the reasoning and conclusion of Kaikaus, J., namely, that rule 10 of Order VIII, C. P. C. is attracted if there is a failure to comply with the direction for filing a written statement under rules 1 and 9 of Order VIII. The same view appears to have been impliedly expressed by the Supreme Court of India in Snagram Singh v. Election Tribunal, Kotah (A I R 1955 S C 425). On page 432 of the report, the learned Judges have observed that the conse?quences mentioned in Order VIII, rule 10 come into play if a defendant does not present a written statement of his defence in accordance with Order VIII, rule 1, C. P. C. I would hold, therefore, that the trial Court was competent in this case, to proceed against the defendant under the provisions of Order, VIII, rule 10.

5. We may now take up the consideration of the second point urged on. behalf of the appellant, namely, that the order passed by the learned trial Judge does not fulfil the requirements of a Judg?ment. The term "judgment" is defined in clause (9) of section 2 of the Civil Procedure Code as meaning the statement given by the Judge of the grounds of a decree or order. It is urged that even if the trial Judge was competent to proceed to pronounce judgment under the provisions of Order VIII, rule 10 he should have recorded formal evidence in support of the plaintiff's claim before passing a decree against the appellant as mere omission to file a written statement does not amount to an admission of the facts stated in the plaint For this proposition, reliance is placed on Sonabati Kumari v. Kirtyanand Singh (A I R 1235 Pat. 306). The learned counsel also referred to Nanhe v. Saiyad Tassadduq Husain (15 I C 212). In that case the trial Court had decreed the claim of the plaintiff under Order VIII, rule 10 without going into the merit of the case or without stating the grounds of his order decreeing the claim. The learned Judicial Commissioner held that the trial Court's order was not a judgment but merely an order decreeing the plaintiff's claim, and this amounted to a material irregularity.

6. In the present case, the plaintiff alleged that he was entitled to recover Rs. 10,203‑13‑0 from the defendant, and there was no denial of these assertions on behalf of the defendant, as he did not file a written statement. The trial Court, therefore, did not have any material before it on the basis of which the plaintiff's claim could have been rejected. It seems to me, therefore, that it would be going too far to hold that the order of the trial Court cannot be regarded as a judgment within the meaning of section 2 (9) of the Civil Procedure Code for the reason that it does not mention in detail the basis of the plaintiff's claim. On the facts of the present case, I will not be justified to interfering with the trial Court's order on this ground alone.

7. For these reasons it is clear that the present appeal has no force and is dismissed with costs. K. M. A.Appeal dismissed.