1. This miscellaneous first appeal by the defendant under ' Order 43, Rule 1 (d) of the Code of Civil Procedure (hereinafter called the code) has arisen under these circumstances. The plaintiff-respondents filed a mortgage suit, No. 22 of 1961, against the appellant on 10-7-64. Order No. 4, dated 25-8-64, shows that summons on the defendant was returned after service. Order No. 5, dated 24-9-64, records the fact of service of notice of the suit by registered postcard on the defendant. On that date, he appeared through a lawyer and filed a petition praying for time to file written statement. Time till 24-11-64 was granted, and further time was granted on that date and on subsequent dates until 5-1-65 to file written statement, on which date also the appellant filed a petition praying for time to file written statement. On 5-1-65, as order No. 7 shows, the court rejected the time petition and posted and adjourned the suit to 18-1-65 "for ex parte hearing". On 18-1-65, the appellant again filed a petition praying for time to file a written statement. The petition was rejected and the order passed was.-"Put up tomorrow for ex parte hearing". On 19-1-65, the defendant did not appear. The suit was taken up for ex parte hearing as ordered earlier and ex parte decree was passed on 20-1-65.

2. The defendant thereafter applied under order 9, Rule 13 of the Code for setting aside the ex parte decree, chiefly, on the. ground that the appellant was unavoidably engaged from 15-1-65 to 23-1-65 in the affairs of the marriage ceremony of his son and as such as he could not come to Dhanbad before 23-1-65, and so his lawyer, in his absence, could not take any further step in the case. A rejoinder was filed by the respondents refuting this case of the appellant. The court below did not accept the case of sufficient cause for non-appearance on 19-1-65, as put up by the appellant and rejected his application filed under order 9, Rule 13 of the Code; that is to say, it refused to set aside the ex parte decree. Hence, the defendant has come up in appeal to this Court. It may be stated here that the value 6f the suit is more than Rs. 21,000/-.

3. The finding of the court below on the question of sufficient cause was sought to be attacked by the appellant on several grounds, one of which was that the evidence adduced on his behalf in support of his case has not been considered by the court below. But, in the view, which we have taken of the law in this case, we did not proceed to examine this contention of the appellant.

4. In our opinion, the order of the court below made, on 6-1-65 or on 18-1-65 posting the case for ex parte hearing was unwarranted by and erroneous in law. Order 8, Rule 1 of the Code provides :

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.

On the facts stated in the order-sheet, it was not a case where the appellant was required by the court to file a written statement, and, therefore, it was not obligatory on him to do so. It was a case where he could file a written statement either at the first hearing or within such time as the court might permit. He did not put any written statement within the time permitted by the court. During the course of argument, our attention was drawn to Rule 10 of order 8 of the Code which says :

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.

There has been some difference of opinion in the courts in India as to whether the procedure prescribed in Rule 10 is attracted only when there is a failure on the part of the defendant to put in a written statement or an additional written statement, as required by the code under rule 9, or whether the tenth rule is also attracted in a case where the defendant fails to put in a written statement even under Rule 1. In my opinion, Rule 10 will be attracted in both the cases where the defendant fails to put in a written statement, but will be attracted only when he fails to do so when required by the court to file the written statement, whether the requirement of the court is under Rule 1 or under rule 9. As I have said above, in this particular case the defendant was not required to put in a written statement; he merely was granted time to put in a written statement, as asked for by him. Therefore, the order for ex parte hearing was not made under Rule 10 of Order 8, even assuming that it could be so made.

5. As is the common notion of law. in a case where the defendant fails to put in a written statement within the time allowed by the court, a suit is posted for ex parte hearing perhaps under the impression that the court is empowered to do so under Order 9, rule 6(1)(a) of the Code. But that is not correct. The said provision reads thus :

6. (1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then-

(a) it it is proved that the summons was duly served, the court may proceed ex parte;

Where the defendant appears and prays for time to file a written statement either on the first date or on an adjourned date, it is not a case where he does not appear, and the court, cannot proceed to hear the suit ex parte or post it for ex parte hearing. It has been pointed out in several decisions, some of which will be adverted to hereinafter in my judgment, that there is a distinction between a case proceeding to hearing ex parte and a case proceeding to hearing in the presence of the party hut without the written statement. Where a defendant appears and files a petition for time to put in a written statement, but time is refused, the suit should be merely put up for hearing, and on the date so fixed, the defendant may take part in the hearing of the suit, but he will have to take such a part without a written statement, unless and until he could persuade the court to accept his written statement in accordance with the provision of law contained in Rule 7 of order 9 of the Code. But he cannot be debarred from taking part in the hearing of the suit by posting it for ex-parte hearing. It is not necessary in this case to lay down as to what extent the defendant can take part in the hearing without a written statement. Just for the sake of guidance of the court below, attention may be drawn to the Full Bench decision of the Calcutta High Court in J.B. Ross & Co. v. C. R. Scriven I.L.R. 43 Cal. 1001 : A.I.R. 1917 Cal. 269 and a Bench decision of this Court in Gobind Gorhi v. Baldeo Ram A.I.R. 1930 Pat. 293. As against that, reference also may be made to a Bench decision of this Court in N. Ram v. B.P. Khemam 1964 B.L.J.R. 197 .. Broadly speaking, the distinction may be pointed out thus: if the suit is taken up for ex parte hearing, the defendant is debarred from taking any part in the proceeding either by way of cross-examining the plaintiff's witnesses or by adducing his own evidence on points, on which he may adduce even without a written statement. But where he takes part in the proceeding without a written statement at the time when the evidence is being adduced, he has got certain rights, because he is not completely debarred from taking part in the proceeding, such as cross-examining the plaintiffs witnesses and adducing his own evidence by way of a mere denial of the plaintiff's case and not adducing his evidence on questions of fact which he has not pleaded by putting in his own written statement. The observations which I have made here are just for the sake of emphasising the distinction between the hearing of a suit ex parte and the hearing of a suit in presence of the defendant without the filing of his written statement, and not for exhaustively laying down the law as to what are the rights of the defendant at the hearing in which he takes part without the written statement.

6. In Sangram Singh v. 1. Election Tribunal, Kotah , the Supreme Court had the occasion to consider the relevant provisions of the Code, especially, these engrafted in Order 9, in relation to the hearing of an election petition which under Section 90 of the Representation of the People Act, 1951. was subject to the provisions of the said Act and of any rules made thereunder had to be tried by the Tribunal, as nearly as may be, in accordance with the procedure applicable under the Code. The defendant, with whom the Supreme Court was concerned in Sangram Singh's case, had appeared at the first hearing and filed a written statement. Issues were framed and the case was adjourned till the 16th March at Udaipur for the petitioner's evidence alone from the 16th to the 21st March. The hearing could not commence on the 16th, as it was a holiday. The defendant absented hint-self and did not take part in the proceedings on the 17th, 18th and 19th March. He, however, appeared on the 20th through his counsel, Mr. Bharat Raj, but the counsel was not allowed to take any part in the proceeding because the Tribunal said that it was proceeding ex parte at that stage. The High Court upheld this order, when it was challenged by the defendant under Article 226 of the Constitution. The Supreme Court upset this order. After referring to the relevant provisions of the Code, as embodied in Orders 8, 9 and 17, Bose, J., who delivered the judgment on behalf of the court, pointed out that 'ex parte' merely meant in the absence of the other party, and merely because once the case had proceeded to hearing ex parte and it so proceeded for a few days,

"it is not a mortgaging of the future but only applies to the particular hearing at which a party was afforded the chance to appear and did not avail himself of it"

Therefore, if a party does appear on "the day to which the hearing of the suit is adjourned", he cannot be stopped from participating in the proceedings simply because he did not appear on the first or some other hearing.

The Supreme Court did not approve the set of view which some High Courts had taken that once an ex parte order is passed against a defendant, he cannot take further part in the proceedings, unless he gets that order set aside by showing good cause under Rule 7.

7. Mukherji, J., sitting singly, said in Gopi Charan v. Ram Prasad .

A party has two rights, the right to file a written statement and the right to appear at the hearing, A party's right of appearance at the trial is not the same as a party's right to tile a written statement and it does not, therefore, follow, in my opinion, that if the right of a party to file a written statement has in some way been affected, then his right of appearance also is thereby affected, nor does it follow vice versa that if a party-has the right to appear at the hearing, he has also the right at that stage to file a written statement.

In the Allahabad case, by an order dated the 17th February, 1953, the court decided to proceed ex parte against all the defendants, because, in spite of several opportunities being given, no written statement had been filed by any of the defendants. The 21st March, 1953, was fixed for final hearing of the suit. On the 18th March, 1953, the defendants made an application praying that they may be permitted to file written statements and proceedings may no more be taken ex parte against them. This application of theirs was rejected by the court below by its order dated the 20th March, and it was directed that the suit would proceed ex parte, as already ordered. Of course, in that case the defendants had moved the High Court in revision from the order dated the 20th March, 1953, refusing to recall the order posting the suit for ex parte hearing; that is to say, not only not allowing the defendants to put in their written statement but also not allowing them to take part in the proceedings.

8. In the instant case, it is no doubt true that the defendant did not take any specific plea that he or his lawyer did not appear on 19-1-65 because of the erroneous order of the court below posting the suit for ex parte hearing and thereby making out a sufficient cause on that ground. The case made out, as stated above, was a different one, which has not been accepted by the court below. As also stated earlier, I do not think it necessary to examine the evidence adduced on behalf of the appellant in support of the case of sufficient cause as made out in his application filed under order 9, Rule 13 of the Code. What I want to emphasise, however, is that the court by passing an order on 5-1-65 posting the suit for ex parte hearing on 18-1-65, which order it reiterated on 18-1-65 by rejecting the petition filed by the defendant to file a written statement, debarred the defendant from taking part in the proceeding at the hearing of the suit on 19-1-65. By this wrong order, the Court led the defendant to believe that he could not participate at the hearing of the. suit on 19-1-65. The proper order made either on 5-1-65 as on 18-1-65 would have been, as it should be, to say that the suit is adjourned to such and such date for hearing, meaning thereby, either impliedly or advisedly in express terms, the court may indicate, it that on the adjourned date of hearing, the suit shall proceed without the written statement of the defendant, but if he wants to take part at the hearing, he may do so. The court having not said so, either imliedly or expressly, rather, having expressly posted the suit for hearing ex parte, debarred the defendant from taking part at the hearing of the suit on 19-1-65. That being so, I accept the contention put forward on behalf of the appellant that on the facts, as they appear from the order-sheet of the suit, sufficient cause has been made out for non-appearance of the defendant on 19-1-65 and not taking part at the hearing of the suit. Hence, it is a fit case where the ex parte decree should be set aside under Order 9, Rule 13 of the Code, It is no doubt true, as was submitted by Mr. S.C. Ghose on behalf of the respondents, that in spite of the wrong order passed by the court below on 5-1-65 or on 18-1-65, the defendant could still appear on 19-1-65 and make a prayer to the court below to recall that order of posting the case for ex-parte hearing and permitting him to participate in it even without the written statement; and if he would not have been allowed to do so, obviously, as was the case before the Allahabad High Court in Gopi Charan v. Ram Prasad , he could have come up to this Court in revision or could have attacked that order in an appeal which could be filed from the ex parte decree. But that is one aspect of the matter. That does not take away his right to invoke the jurisdiction of the court under order, 9, Rule 13 of the Code and ask it to set aside the ex parte decree on the ground of the wrong order of posting the suit for ex parte hearing.

9. In the result, I allow the appeal, set aside the order dated 26-7-65 of the court below made in Miscellaneous Case No. 8 of 1965, allow the case filed under order 9, Rule 13 of the Code and set aside the ex parte decree passed on 20-1-65 in Mortgage Suit No. 22 of 1964. I am, however, in this appeal unable to accede to the further request made on behalf of the appellant to allow him to put a written statement in the suit, since, in pursuance of my order, he is to be allowed to take part in the hearing of the suit. The reason is this that the scope of this appeal is limited to the power of the court below under order 9, Rule 13 of the Code. The whole suit or every order made in it is not subject to our jurisdiction in this appeal, which is not an appeal from the ex parte decree. I would, however, like to observe that if the appellant is so advised, he may move the court below for a permission to file a written statement and, in that event, it will be for the court below to decide as to whether it can or should grant such a permission, either in exercise of its inherent power or under Order 9, Rule 7 of the Code. I must not be understood to have expressed any opinion to say that the court can or should do so or cannot or should not do so. In this connection, it will be useful to take guidance from the decision in Arjun Singh v. Mohindra Kumar . It will be entirely a matter within the discretion of the court below to dispose of the application of the appellant, if and when one is filed for a fresh permission to file a written statement, as it thinks fit and proper to do in accordance with law. There will be no order as to costs of this appeal.

P.K. Banerji, J.

10. I agree.