Judgment:
D.K. Kapur, C.J.
(1) The Bank of Maharashtra, respondent No. I in this appeal had filed a suit for the recovery of loans granted to defendants 1 to 9 in various accounts, these defendants are now the appellants in this case. The 10th defendant was the drawee of certain bills accepted by that defendant. which were subsequently dishonoured. On 16th January, 1985, the defendants were absent and the time granted to file the written statement had expired without any written statement being filed by any of the defendants. The learned Single Judge pronounced judgment against the defendants with costs and passed a decree for a sum of Rs. 2,46,870.68. The liability of the 10th defendant was held to be Rs. 1,71,260.00 with proportionate costs, and interest at the rate of 18 per cent pe r annum from the date of institution of the Suit till realisation. There was an application listed before the Court on that date, being 1.A. No. 63/85, moved by some of the defendants, which was dismissed in default.
(2) Defendants I to 9 filed an application under Order 9, Rule 13 of the Code of Civil Procedure praying that the ex-parte decree should be set aside. This application was based on the fact that the learned counsel for defendants I to 9, Shri D.D. Sharma had been suddenly taken ill and was thus unable to appear on 16th January, 1985. It was stated that due to this sudden development he had been unable to inform the defendants to make alternative arrangements.
(3) In deciding this application, it was held that though there may be sufficient cause for non-appearance, this would be a merely technical view. It was noted that there had been a persistent default in filing the written statement.
(4) The learned Single Judge noted the provisions of Order 8, Rule 10 of the Code and called upon Mr. Sharma to satisfy him that there was some purpose in setting aside the ex-parte order dated 16th January, 1985. It was noted as follows:
'MR.Sharma stated that he could not file the written statement as the copies of the documents which were given to him by counsel for the plaintiff were not readable................................................................................................................................................ However, as the order dated 5-9-1984 would show the counsel for the plaintiff agreed to supply photo copies of the documents to the counsel for the defendants. This was done- But then the objection is that these documents were not readable. Mr. Sharma showed me these documents and in my view they are quite readable. In any case the record of the suit could have been inspected.'
The order then proceeds to dismiss the application on the ground that no useful purpose would be served by setting aside the ex-parte order. It was observed that this was a fit case for the application of the provisions of Order 8, Rule 10 of the Code. This order is dated 26th April, 1985.
(5) The appeal directed against the order refusing to set aside the ex-parte order came before us as a consequence of the stay application relating to the prayer for stay which accompanied the appeal. We thought that this was a v cry short point which could be decided straightaway. So, we heard the appeal.
(6) Learned counsel for the appellants urges that the learned Single Judge has erred in combining the provisions of Order 8, Rule 10 with the provisions of Order 9. Rule 6 of the Code. He has referred to a judgment of the Rajasthan High Court, Sewa Ram v. Misrimal and others, , where a somewhat similar situation arose. In that case, when the Suit was called for hear ng, the defendant was absent, so the order was that the Suit should proceed ex-parte and the written statement should be struck off. An appeal was taken to the District Judge, who held that no appeal lay till the ex-parte order was set aside. Still later, the District Judge set aside the ex-parte order and allowed the Suit to proceed on payment of costs. The order striking off the written statement was also set aside. The case went to the High Court because the defendant wanted to urge that it was not necessary to set aside the ex parte order but sufficient for the defendant to appears on the next date and take part in the proceedings. In essence, it was the order directing the payment of Rs ICO.00 as costs which was challenged as being in excessive jurisdiction.
(7) The Court eventually came to the conclusion that the ex-parte order had to be set aside first before the defendant could defend the Suit. It was also observed that if there was an order directing the Suit to be tried ex-parte, there could be no order striking off the defense.
(8) On a parallel to that case, learned counsel urges that the order decreasing the Suit on the ground that no written statement was filed, was passed on the non-appearance of the defendants and the two provisions could not be combined.
(9) In any case, we should first deal with the order refusing to set aside the ex-parte decree. On this point, learned counsel urges that Order 9 Rule 13 shows that if the ex-parte order is set aside, the Court has then to proceed with the Suit. The learned Single Judge has thought that in case the ex-parte order is set aside and the Suits proceeds, then nothing will remain but to pass a decree again. We do not agree that this is absolutely correct.
(10) The circumstances show that the ground for non-appearance of the defendants was the sudden illness of their counsel, Mr. DD.Sharma. No doubt, there is no contest on the facts that Mr. Sharma was taken ill and could not inform his clients. How ever. the decree has not been set aside on the footing that nothing else could have been done but to pass a decree again under Order 8, Rule 10 of the Code.
(11) This is not strictly relevant under Order 9, Rule 13. No doubt, if a written statement has not been filed, Order 8, Rule 10 of the Code does apply. If the ex-parte order is set aside, several things are possible. For one thing, the defendant might file a written statement and the Court may in its discretion extend the time for so filing a written statement. This depends on the contentions raised at that time. Furthermore, even if a written statement is not filed, the provisions of Order 8, Rule 10 as they now exist allow some alternative procedures to be followed by the Court. The provision reads :
'WHERE any party from whom a written statement is required under Rule I or Rule 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.'
It is not necessary that the Suit should be decreed merely because the written statement is not filed. It may still be necessary for the plaintiff to prove the case to the satisfaction of the Court. In other words, in applying the provisions of Order 8, Rule 10, the Court may require some proof of facts necessary to pronounce judgment against the defendant even if there is no written statement. There is, however, a choice with the Court, either to pronounce judgment or to proceed with the Suit as if no written statement has been filed. It will be open for the defendant to raise any contentions which may be required according to the manner in which the Court decides to proceed.
(12) There are thus several choices open to the Court if the ex parte order is set aside. Firstly, time may be extended to file a written statement. Secondly, the Court may not extend the time for filing a written statement and may pronounce judgment against the defendant under Order 8, Rule 10. Thirdly, the Court may decide that the Suit should be decided on ex-parte evidence, i.e., it may require the plaintiff to prove the necessary facts. This depends on what view the Court takes when Order 8, Rule 10 is to be applied. It does not necessarily follow that the Suit must be decreed, though this might be the eventual result.
(13) We accordingly allow this appeal and consequently allow the application under 0rder 9. Rule 13 of the Code. The result would be that the ex-parte order would be set aside and the Suit would have to proceed. It will be for the learned Single Judge to decide how the Suit is to proceed further in accordance with the possibilities analysed above. There will be no order as to costs.