Judgment:
ORDER
Ratnam, J.
1. This civil revision petition has been preferred by the fifth defendant in O.S. No. 143 of 1977, Sub Court, Salem, later transferred to the District Munsifs Court, Tiruchengode and renumbered as O.S. No. 867 of 1982, against the orders of the Courts below rejecting the application filed by the petitioner in I.A. No. 2372 of 1989 in O.S. No. 867 of 1982 praying that the exparte decree passed against it on 16.11.1989 should be set aside and the petitioner permitted to contest the suit.
2. Briefly stated, the circumstances giving rise to this civil revision petition are as follows : On 15.3.1977, the respondent herein instituted O.S. No. 143 of 1977, Sub Court, Salem (later O.S. No. 867 of 1982, District Munsifs Court, Tiruchengode), praying for the relief of declaration that the respondent was a dealer in petroleum products and for a permanent injunction restraining defendants 1 to 4 in the suit from interfering with the carrying on of the business by the respondent. After service of summons on defendants 1 to 4 in the suit, written statements on behalf of defendants 1 and 2 were filed on 29.4.1977, which was adopted by the third defendant, while, on behalf of the, fourth defendant also, a written statement was filed on 5.7.1977. By a memo filed on behalf of the first defendant in the suit on 16.6.1978, it was brought to the notice of the Court that the first defendant, viz., Caltex Oil Refining (India) Ltd., stood amalgamated with Hindustan Petroleum Corporation Ltd., the petitioner herein, and the latter was the successor of the former and as such, the petitioner should be brought on record as a successor-in-interest of the first defendant in the suit, without prejudice to its right to defend the suit by continuing the defence already put forward. Consequent upon the memo so filed, on 31.7.1978, I.A. No. 390 of 1978 in O.S. No. 143 of 1977, Sub Court, Salem, was filed to implead the petitioner, viz., Hindustan Pertroleum Corporation Ltd., as the fifth defendant in the suit and by an order dated 16.11.1979 I.A. No. 390 of 1978 was allowed and the petitioner was impleaded as the fifth defendant in the suit. Thereafter, the petitioner entered appearance through counsel arid was directed on 17.7.1980 to file a statement by 25.8.1980 and subsequently, time for filing the written statement was extended upto 27.10.1980, by which time, the petitioner had not filed any written statement and that led to the petitioner being set ex parte. When the suit was called on 3.1.1981, it was dismissed for default against all the defendants in the suit on the counsel for the respondent herein reporting no instructions. The respondent, however, filed I.A. No. 155 of 1981 in O.S. No. 143 of 1977, Sub Court, Salem, which was later re-numbered as I.A. No. 1993 of 1981 in O.S. No. 867 of 1982, District Munsifs Court, Tiruchengode, for the restoration of the suit dismissed for default on 3.1.1981; To this application for restoration, the petitioner was not made a party and eventually, by an order dated 19.11.1982, I.A. No. 1993 of 1981 was allowed and the suit was restored. Thereafter, after several adjournments, on 16.11.1989, an ex parte decree was passed against the petitioner as well as others. In I.A. No. 2372 of 1989 in O.S. No. 867 of 1982, the petitioner prayed that the ex parte decree passed against it on 16.11.1989 should be set aside. In the affidavit filed in support of that application, the petitioner, after referring to the posting of the suit on 7.11.1989 and its adjournment to 16.11.1989 and the filing of the application to set aside the ex parte order on that date, it was stated that the counsel for the respondent informed the counsel for the petitioner that he intended to file an application to amend the plaint and, therefore, counsel for the petitioner need not come to Tiruchengode and on 16.11.1989, a memo adopting the statement of the first defendant had been kept ready and further time was prayed for, but the request for time was turned down by dismissing the application filed in that regard and exparte evidence was taken and the suit decreed ex pane on that date and that the petitioner should be given an opportunity to contest the suit, especially when the other defendants in the suit did not have any interest whatever. In the counter filed by the respondent, it was stated that nothing prevented the petitioner from appearing in Court on 16.11.1989 and the reasons given for setting aside the exparte decree passed on 16.11.1989 were also not acceptable. The learned District Munsif, who heard this application, took the view that the reasons given by the petitioner for non-appearance in court on 16.11.1989 cannot be accepted and that the failure on the part of the petitioner to take steps to rescind the ex pane order passed against it on 27.10.1980 established that the petitioner was indifferent to the court proceedings and, therefore, the petitioner was not entitled to any indulgence. In the view so taken, the application was dismissed. Thereupon the petitioner preferred an appeal in C.M.A. No. 1 of 1991 before the Sub Court, Sankari. The learned Subordinate Judge, after referring to the provision of Order 9, Rule 13, Code of Civil Procedure, held that the grounds stated in the application filed by the petitioner were not acceptable and, therefore, the learned District Munsif was right in dismissing the application filed by the petitioner. Consequent upon that, the appeal was also dismissed, the correctness of which is questioned in this civil revision petition.
3. From the orders of the courts below, it is very clear that they have omitted to bestow attention on the state of affairs as revealed by the records and had come to an erroneous conclusion. After the petitioner was impleaded and time for the filing of the written statement had been granted to it on several occasions, it was undoubtedly the duty of the petitioner to have filed a written statement either within the original time granted or within the extended time. That, however, was not done. From the certified copy of the 'B' Diary, it is seen that on 27.10.1980, an entry had been made to the effect that 'written statement of the fifth respondent (the petitioner herein) with the petition not filed and trial by 8.12.1980.' To the situation that obtained on 27.10.1980, viz., the non-filing of the written statement by the petitioner despite adequate time having been granted to it, the provisions of Order 8, Rule 10, Code of Civil Procedure became applicable and the Court did not proceed to pronounce judgment against the petitioner, but had merely posted the suit for trial to 8.12.1980. On 8.12.1980, since both the parties were not ready, the suit was adjourned to 3.1.1981, on which date, the respondent was absent and its counsel also reported no instructions and that led to the dismissal of the suit with costs of the defendants. The dismissal so made has necessarily to be regarded as one against the petitioner as well, especially when on 27.10.1980, the Court had not proceeded to pronounce judgment against the petitioner for its failure to file a written statement, but made only an order posting the suit for trial on 8.12.1980. Subsequently, the respondent, in I.A. No. 1993 of 1981, sought for and obtained a restoration of the suit dismissed for default on 3.1.1981. To this application, the petitioner was not impleaded as a party at all and the restoration of the suit as thus limited to defendants 1 to 4 in the suit and the suit had been restored by the order passed on 19.11.1982. At best, this restoration could be considered to be valid and effective only in so far as defendants 1 to 4 in the suit are concerned and not against the petitioner, as the dismissal of the suit against it had not been set aside at all. In this state of affairs, it is surprising that the trial court thereafter had posted the suit for trial even as against the petitioner herein and had also decreed the suit ex parte against the petitioner on 16.11.1989, when the earlier dismissal of the suit for default against the petitioner herein had not been set aside. Learned Counsel for the petitioner placed strong reliance upon the decision reported in Narayanaswamy v. Sundari : (1980)1MLJ278 . In that case, in a petition for annulment of marriage filed by the husband against the wife, the wife had been set ex pane and the petition was adjourned for evidence of the husband to a particular date and on his absence on that date, the petition itself was dismissed for default. An application was filed to set aside the order of dismissal for default and that was allowed even without notice to the wife, with the result that she did not have any knowledge whatever of the passing of the ex pane order. It was in this context that it was pointed out that though on a strict interpretation of Order 9, Rule 4, Code of Civil Procedure, no notice as such is contemplated, yet, the Civil Rules of Practice provide for giving of such a notice even in interlocutory applications to the other side and no distinction is made whether the other party had earlier appeared or not. It was also further pointed out that even on the footing that the wife had earlier remained ex pane, after the termination of the proceedings in her favour by the dismissal of the proceedings in her favour by the dismissal of the proceedings for default, the requirement as to the service of notice as contemplated by Rule 32 of the Civil Rules of practice in an interlocutory application of the nature under Order 9, Rule 4, Code of Civil Procedure, cannot be dispensed with as an order passed on such an application would vitally after the interests of the defendant secured under the adjudication by default. The position in this case is analogous to what had been dealt with in the decision referred to. Apart from Rule 32 of the Civil Rules of Practice referred to earlier, even under Order 9, Rule 9(2), Code of Civil Procedure, notice of the application should be served on the opposite party. However, what had happened in this case is that one of the opposite parties, viz. the petitioner herein was not made a party at all, with the result that was no restoration whatever of the suit dismissed for default against the petitioner and the subsequent proceedings taken on the footing that the suit against the petitioner had also been restored and that the petitioner had remained ex parte, which justified the passing of an ex parte decree against the petitioner, are not in order. In other words, it would follow that having regard to the dismissal of the suit against the petitioner on the earlier occasion and the failure on the part of the respondent to have it restored against the petitioner also, the trial court was in error in proceeding to deal with the suit as if the suit had been restored against the petitioner also and that for the absence of the petitioner on 16.11.1989, there was justification for the passing of an ex parte decree against the petitioner. Inasmuch as the view above taken, there was no restoration of the suit dismissed for default against the petitioner there was no question thereafter of the passing of an ex parte decree against the petitioner on 16.11.1989 as if the suit against the petitioner was pending on that date. Under those Circumstances, the courts below fell into an error in dismissing the application filed by the petitioner for setting aside the exparte decree. Consequently, the civil revision petition is allowed and the orders of the courts below are set aside and the exparte decree passed against the petitioner will also stand set aside. There will be, however, no order as to costs.