Kodi Makku Naicker And Another. v. Agathiappa Goundar And Others.

1. The petitioners were defendants 6 and 15 in the suit and they were declared ex parte by an order dated 13th February, 1947. The contesting defendants 1 to 3 filed written statements on 14th March, 1947, and issues were framed on 9th April, 1947. On 16th September, 1947, the petitioners filed an application to set aside the ex parte order. That application was dismissed on 8th October, 1947. They then sought to file a written statement by an application of 13th'Novcmber, 1947; but by an order of even date that application was dismissed. In this revision petition against that order, it is contended that the learned District Munsiff was bound to grant the petitioners permission to file a written statement; for such was their legal right. The petition was admitted and posted before this Bench for considering the question whether the petitioners had the legal right claimed by them.

2. If the petitioners had been successful in their application to set aside the ex parte order, then under Order 9, Rule 7, of the Code of Civil Procedure, they would have been allowed to answer the suit in the same way as if they had appeared on the day fixed for their appearance. But since the application was dismissed, we have to consider whether under any other provision of law they are entitled to file a written statement, despite the fact that written statements were ordered to be filed on 14th March, 1947, and that issues on the points raised in the pleadings were framed on 9th April, 1947. Order 8, Rule 1, Civil Procedure Code requires the defendant, if he wishes to file a written statement, to do so, at or before the first hearing, or within such time as the Court may permit. The first hearing is admitted by Mr. Gopalakrishnan to be the day on which issues are framed, i.e., the defendants had to file their written statement, if they wished to file any at all on or before 9th April, 1947. Order 8, Rule 9, Civil Procedure Code, lays down the rule that :

No pleading subsequent to the written statement of a defendant...shall be presented except by the leave of the Court...but the Court may at any time require a written statement or additional written statement from any of the parties.

It thus appears that upon the failure of the defendants to file a written statement on the day fixed by the Court, or, at any rate, before the date on which issues are framed, they have no right at all to file a written statement. The Court may grant them permission by way of indulgence or if the Court thinks that a written statement is necessary, it may call upon the defendants to do so under Rule 9 of Order 8, Civil Procedure Code. Otherwise, the defendants have no such right.

3. We should have had no difficulty at all in coming to the conclusion that the petitioners had no right to file a written statement, and this matter would not have been posted before a Bench were it not for certain observations to be found in a judgment of Varadachariar, J., in Perumal Naicken v. Kondama Naicken (1939) 1 M.L.J. 64. The learned Judge therein refers to the decision of Wallace, J., in Venkatasubbiah v. Lakshminarasimham (1925) 49 M.L.J. 273. and we respectfully agree with Varadachariar, J., that the following principle enunciated by Wallace, J., is good law in the High Court:

Even a defendant who fails to show good cause for his previous non-appearance is not debarred from participating in the further conduct of the case and that the original order (declaring the defendant ex parte) only covers the period during which the party was originally absent.

The only difficulty however arises with regard to the application of the rule" laid down by Wallace, J., in the above-mentioned case. Varadachariar, J., in the course of his judgment said that he experienced:

some hesitation as to whether or not the first defendant should be permitted to file a written statement and proceeded to consider whether the rule laid down by Wallace, J., in Venkata-subbiah v. Lakshminarasimham (1925) 49 M.L.J. 273, afforded any guidance. He pointed out that no evidence had been recorded in the case before him and then went on to say:

The mere fact that on the new statement, additional issues may have to be framed does not amount to reopening anything that has happened .... It may be that on the filing of the petitioner's written statement, the plaintiff might require time to get ready to meet the plea there raised; but that is an indulgence required by the plaintiff and not an indulgence required by the petitioner. I quite realise that the object of Rules 6 and 7 of Order 9, will be frustrated if the defendants could be allowed to absent themselves with impunity at the earlier stages of a litigation. But where by reason of causes for which none of the parties is responsible the case has not made much progress, there is no reason why these rules should be applied as penal provisions depriving parties of the opportunity of putting forward their defence.

We respectfully agree with the learned Judge that we should not strain the natural meaning of the provisions of the Code so as to impose a penalty for the laches of the defendant where the Code does not provide a penalty; but we feel that the rule laid down by Wallace, J., supports the conclusion we have arrived at from a reading of Order 8, Rules 1 and 9, Civil Procedure Code to which Varadachariar, J., made no reference. Wallace, J., held in effect that the defendants could participate in the future proceedings of the case, but not in what was past. Since the stage for the filing of written statements and the framing of issues had been passed, no fresh written statement could be filed as of right.

4. The petition is dismissed with costs.