(Delivered by King, J.)
This is an appeal by the first defendant against the judgment of the learned Subordinate Judge decreeing O.S No. 47 of 1943 as against the appellant. The appeal is filed under O. 43, R. 1(b) of the Code of Civil Procedure which provides a right of appeal from an order under R. 10 of O. 8 pronouncing judgment against a party. The judgment does not say specifically that it is being pronounced against the first defendant under that order; and because this is so, a preliminary objection was raised on behalf of the plaintiff that no miscellaneous appeal lay and that the appellant's only right was to file a regular appeal and pay the required Court-fee. We have found against this preliminary objection. Although the language of paragraph 2 of the judgment is somewhat ambiguous and refers not only to the failure of the appellant to file his written statement in time, but also to the fact that at the trial on the second February 1944 he did not appear, it seems clear to us that this judgment must be regarded as essentially passed against the appellant because he did not file his written statement by the 31st January as called upon to do by the Court. There is no doubt that when he was called upon to file a written statement by the 31st January he was definitely warned that if he did not do so judgment would be pronounced against him under O. 8, R. 10. It seems therefore to us reasonable to construe the judgment and decree in this case as recording an action of the learned Subordinate Judge taken under O. 8, R. 10. The appeal, therefore, cannot be said to be incompetent under O. 43, R. 1(b).
It is of course, common ground that the written statement was not filed on the 31st of January. On that day, the appellant filed an application asking for a further three months' time for filing his written statement. That application was supported by an affidavit from a cousin of the appellant and a medical certificate granted on the 30th January in Trichinopoly. The medical certificate said that the appellant was suffering from mental worry and high blood pressure, and in the opinion of the Doctor, could not do any intelligent mental work for another three months. He required peace of mind and complete rest. The learned Judge passed orders on the 2nd of February rejecting the application. He held that the facts in the case did not show that the appellant was in such a position that he was unable to attend to his share in the preparation of the written statement. We see no reason to differ from the discretion of the learned Subordinate Judge in refusing the application, and would point out further that, on the 31st January, there appears to have been no attempt made to obtain any affidavit from an Advocate to show that the Advocate whose primary duty, as we conceive it, is to prepare the written statement on behalf of his client, made any attempt to do so which was frustrated by the client's state of health. We are therefore not prepared to allow this appeal on the ground that the learned Judge erred in his discretion in refusing the application.
There is, however, a point of law taken in regard to an order under R. 10. It is argued that an order under R. 10 cannot be passed if a defendant fails to file a written statement when required to do so under R. 1, and that R. 10 can apply only to some default by a party under R. 9. There can be no doubt that the default of the appellant in this case was under R. 1 and not under R. 9. The question whether R. 10 relates only to R. 9 or may also be taken to relate to R. 1, is not free from difficulty. The only time when the matter appears to have come up for decision in this Court is in Rangaswami Udayan v. Manickam Pillai(1) (Letrers Patent Appeal). There the learned Judges differed. Mr. Justice Ayling held that R. 10 applies to R. 1 as well as to R. 9, and Mr. Justice Seshagiri Ayyar held to the contrary. There is therefore no authority of this High Court binding us in disposing of this matter. We are of opinion that the view of Mr. Justice Seshagiri Iyer is the preferable view. R. 9 of O. 8 runs thus;
“No pleading subsequent to the written statement of a defendant other than by way of defence to a set off shall be presented except by the leave of the Court and upon such terms as the Court thinks fit, but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time for presenting the same.”
It is clear to us that the requisition upon any of the parties for a written statement referred to in R. 9 can relate only to a written statement which is called for by the Court subsequent to the written statement which the defendant has already put in. It cannot amount to a mere repetition of the requisition already provided for in R. 1. The word “written statement” is appropriate because R. 9 gives the Court power to call upon any of the parties to file a written statement. The expression “any of the parties” includes the plaintiff, and though it is not impossible to describe an additional pleading filed by the plaintiff on the direction of the Court as an additional plaint it is much more appropriate to call it a written statement. The further words “the additional written statement” will of course apply to a defendant who has already filed the ordinary written statement contemplated under R. 1. The next point is whether the expression in R. 10 “when any party from whom a written statement is so required fails to present the same within the time fixed by the Court” relates only to R. 9 or to R. 1 as well. It seems to us very difficult to hold that the word “so” occuring in this context in R. 10 can possibly be related back to R. 1. It must in our opinion, refer to something which is in close juxtaposition to itself and that can only be the provision of R. 9. It is true, as pointed out by Mr. Justice Ayling, that there seems to be no logical reason why a party who fails to comply with an order under R. 9 should suffer this drastic penalty, whereas the same penalty is not provided for a party who commits default under R. 1. But that is a defect in the order which should, in our opinion, be set right if necessary by appropriate amendment. We must hold that there is something very strange on a natural interpretation of the words in R. 10 to make it relate to R. 1, even on the view suggested by Mr. Justice Ayling that Rr. 2 to 8 may be regarded as sub-rules under R. 1. The fact remains that two pages of printed matter intervene between the requisition of the Court under R. 1 and the word “so” occurring in R. 10. We are accordingly of opinion that the learned Judge had no jurisdiction to pronounce judgment under R. 10 against the appellant. In so far, therefore, as he must be deemed to have done so, his decree will be set aside and it will be deemed to be a decree passed against the appellant because the appellant was ex parte. There will be no order as to costs.
N.R.R