Rupsha Fish and Allied Industries Ltd. Vs. The Premier Bank Limited and others (Farid Ahmed, J.)

the last time and fixed up 6.2.2006 for filing written statements with a cost of Tk. 700/-, in default, fixed for exparte disposal and decision of the case.  The defendants without filing any written statements and without depositing the cost money filed an application for time to file written statements. This application was filed by a new lawyer who stated that the previous lawyer of the defendants retired from the case. The defendants then and there deposited the cost amount and made a prayer for adjournment. The learned Court rejected the said prayer and took up the case for exparte hearing and disposed of the case by an exparte judgment.

  1. 11.       The learned Advocate for the opposite party has submitted that the  exparte decree was passed in absence of the learned Advocate and that the learned court debarred him from appearing in the case. So, the miscellaneous case under order 9 Rule 13 of the C.P.C is maintainable . In support of his submission he referred three decisions.
  2. 12.       In the case of Damodar Das Vs. Raj Kumar Das reported in AIR 1922 (Patna) 485 the suit was decreed exparte on 20.9.1919. The defendant applied Under Order 9 Rule 13 of the C.P.C to have the decree set aside. The High Court found that the trial took place on the 11th, 12th  and 13th August, 1919 and on the 11th the defendants pleader appeared and asked for an adjournment which was refused. He renewed the application on the following day stating that he had no instruction from his client to cross-examine the plaintiff whose evidence had been taken on the 11th . His application was again refused.
  3. 13.       In the case of Bothra and others Vs. Kedar Nath Bothra and others reported in A.I.R. 1938 (Calcutta) 74 the plaintiffs in the suit at a late stage applied for the issue of a commission. The learned Counsel for the plaintiffs, when the suit was called on, applied for an adjournment, in order that he might be in a position to tender the commission evidence after the commission had been executed. The court rejected the application. Thereupon  Counsel stated that he was not in a position to proceed. The suit was accordingly dismissed. It has been held that if the plaintiff’s counsel confines himself to asking for an adjournment and when it is refused, retires from the case and states that he has no further instruction in that case it cannot be said that in presence   of the plaintiff decree was passed.
  4. 14.       In the case of Md. Nurul Haque Vs. Sonali Bank of Bangladesh and another reported in 39 DLR 223 their Lordships held :

………..” It is apparent that after rejection of the prayer for adjournment when the suit was called on for hearing the plaintiff did not appear within the meaning of Order 9 Rule 8 read with Order 17 Rule 2 of the C.P.C and the learned Subordinate Judge dismissed the suit for default”……..

  1. 15.       In all the aforesaid cases there was an application for adjournment which was rejected by the court. The learned Advocate thereafter withdrew him from the suit and intimated the court that he has no further instruction from his client . So, it was held that the suit was disposed of in absence of the Advocate and miscellaneous case under order 9 Rule 13 were entertained.
  2. 16.       The exparte judgment shows that the learned Judge rejected the defendants’ application for adjournment and thereafter took up the case for exparte hearing. It does not appear from the order that the newly appointed lawyer thereafter filed any application for further adjournment or that the learned Advocate intended to appear for taking part in the hearing of the suit. Even he did not retire from the suit.
  3. 17.       On 6.2.2006 was fixed for filing written statements, in default, for taking exparte decision on the suit. The defendants on that date also failed to file written statements. The learned court thereafter passed the judgment for failure of the defendants to file written statements. This judgment comes within the purview of Order 8 Rule 10 of the C.P.C. Order 8 Rule 10 of the Code of Civil Procedure reads as under:

“ 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.”

  1. 18.       So, the order passed by the Court clearly comes within the perview of Order 8 Rule 10 of the C.P.C. An order passed under Order 8 Rule 10 of the C.P.C. is an appealable order under the provision of Order 43 Rule 1(b) of the C.P.C. The provision of Order 43 Rule 1(b) of the C.P.C reads as under :

“ 1. An appeal shall lie from the following orders under the provisions of section 104, namely:-

(a) …………………………

(b). an order under Rule 10 of Order 8 pronouncing    judgment against a party.” 

  1. 19.       According to learned Advocate for the opposite party the impugned judgment having been passed  under the provision of Order 17 Rule 2 of the Code of Civil Procedure the application under Order 9 Rule 13 is maintainable and that  the exparte judgment passed in money suit can be considered as an order under the second limb of Rule 10 of Order 8 of the Code of Civil Procedure. In case of failure to file written statement the court can take two courses: (1) pass an exparte judgment and (2) can make such order in relation to the suit as it thinks fit. In support of his submission he relied on the cases of Narendra Patra Vs. Shiba Narayan Taldi and another reported in A.I.R. 1995 Orissa 45, Innovation Apartments Flat Owners Association, Secundrabad Vs. M/S. Innovation Associates, Secundrabad reported in AIR 1991 Andhra Pradesh 69, N. Jayaraman Vs. M/S. Glaxo Laboratories India Ltd. reported in AIR 1981 Madras 258, M/S. Kuvarp industries Bangalore Vs. State Bank of Mysore reported in AIR 1985 (Kant) 77 and the case of M.S. Manick Peter and others Vs. K. Surendra nathan reported in AIR 1988 Kerala 161. In all these cases it has been decided that an order passed under Order 8 Rule 10 of the Code of Civil Procedure can be challenged by an application under Order 9 Rule 13 of the Code of Civil Procedure.
  2. 20.       The learned Advocate for the petitioner on the contrary has submitted that against an order passed under Order 8 Rule 10 of the C.P.C. is appealable under Order 43 Rule 1 (b) of the C.P.C but in India the provision of Rule 1(b) of Order 43 of the C.P.C has been deleted in 1976 by an amendment and there is no provision in the Indian C.P.C for filing an appeal against the order passed under Order 8 rule 10 of the C.P.C . So, in all the aforesaid cases referred on behalf of opposite party  it was held that Order 9 Rule 13 of the Code of Civil Procedure is entertainable against an order passed under Order 8 Rule 10 of the C.P.C . But in our C.P.C the provision of Rule 1(b) of Order 43 of the C.P.C  has not been amended. According to our C.P.C  Rule 1 (b) of Order 43 is the specific provision for filing an appeal against an order passed under Order 8 Rule 10 of the C.P.C if the defendant fails to present the written statements on the date fixed by the Court. The learned Advocate for the petitioner has referred the case of Gopi Charan Bajpai and others Vs. Ramprashad Awasthi and others reported in AIR 1957 (Allahbad) 283. The case was decided before amendment of the C.P.C. in India and  it has been held that an order passed under Order 8 Rule 10 of the C.P.C is  an appealable order and appeal lies under the provision of Order 43 Rule 1(b) of the C.P.C. Before amendment of  C.P.C in India  the provision of Order 43 Rule 1(b) was the procedure for filing an appeal against an order passed under order 8 Rule 10 of the C.P.C. But after amendment the provision of appeal has been deleted in India. In the case of M/S. M. Manick Peter and others Vs. K. Surendranathan reported in AIR 1988 Kerala 161 it has been held :

……….” A right of appeal provided Under Order 43 Rule 1 (b) was taken away by deletion of sub clause (b). The decree passed in the present case is in conformity with the requirements of Order 8 Rule 10 as amended in 1976. For the absence of the defendnats and their Counsel, it is also a decree exparte. Order 9 Rule 13 C.P.C. enable the defendants to apply to the court to set aside an exparte decree against him”……………

  1. 21.       Mr. Probir Halder also referred the case of Most. Hakumat Bibi Vs. Imam Din and others reported in PLD 1987 (S.C.)-22. In that case exparte decree was passed for not filing the written statements on the date fixed by the Court. An appeal was filed against that order under the provision of Order 43 Rule 1(b) of the Code of Civil Procedure. In Pakistan the provision of Order 43 Rule 1(b) neither has been amended nor deleted. The provision of appeal Under Order 43 Rule 1(b) against an order passed Under Order 8 Rule 10 still is present in Pakistan like Bangladesh.
  2. 22.       It has been argued on behalf of opposite parties that the exparte judgment passed by the lower Court is not a judgment as defined in Section 2(9) read with Order 20 Rule 4(2) of the Code of Civil Procedure as the learned Court did not consider the case of the parties, the documents and the evidence cited by the plaintiff-petitioner in support of his case. In the case in hand the Court passed a short judgment disposing the suit in favour of plaintiff and did not at all consider the facts of the case and a decree was drawn. As per provision of Rule 10 of Order 8 the Court had two options open to it to deal with the situation arising out of the failure of the opposite party to file written statements despite they having been allowed several opportunity to do so. One of the options was to decide the suit forthwith, (ii) to make such order in relation to the suit as it thought fit. As per the provision of Order 8 Rule 10 the court can pass a judgment if the defendant fails to file written statements on the date fixed by the Court. In the present case the judgment passed by the Court is an order and the Court was not required to draw a decree in support of the said judgment. In this point we get support from the case referred by the learned Advocate for the petitioner in the case of Sarder Sakhwat Ud-Din and others Vs. Muhammad Iqbal and others reported in PLD 1983 (Lahore)-448. In that case it was held that “ after making the impugned order the learned Senior Civil Judge had drawn up a decree sheet as well. It was perhaps through inadvertence that the decree sheet was prepared because, as held above the order passed by him was an order and not a decree. The mere fact that he had erroneously drawn up the decree sheet would not change the true character of the order under review. In that case the case of the province of Punjab and others ruled by the Pakistan S.C. was considered and wherein it was held :

“…… an order pronouncing the judgment against the defendants for failure to file written statements is an appealable order but not a decree. The use of the ward “Judgment”  in Rule 10 of Order 8 of the Code of Civil Procedure is of little avail to the respondents because according to the  definition of the “judgment” as given in clause 9 of section 2 of the above code a decree as well as an order is a judgment. It is therefore, not correct to say that only that adjudication of the court which is followed by a decree is a judgment and that any other adjudication, though appealable, is not a judgment” ………….

  1. 23.       The Court has drawn up a decree in terms of the judgment but the same was not necessary and for drawing up such decree it cannot be said that it is a decree within the meaning of section 2 (9) of the C.P.C and the judgment  comes within the perview of Order 9 Rule 6 of the Code of Civil Procedure and against the said judgment the miscellaneous case under Order 9 Rule 13 of the Code of Civil Procedure is maintainable.
  2. 24.       Referring the 1st part of the Order 9  Rule 13 of the Code of Civil Procedure the learned Advocate for the opposite party has submitted that in any case in which an exparte decree is passed against a defendant, he may apply to the court for setting aside the exparte decree by an application Under Order 9 Rule 19 of the C.P.C. In support of his submission he referred the case of Innovation Apartments Flat Owners Association, Secundra-bad Vs. M/S. Innovation Associates Secundrabad reported in AIR 1991 (Andhra Pradesh) 69. From plain reading of the entire provision of  rule 13 of order 9 it appears to us that if the Court is satisfied that the summons was not duly served upon the defendant or that he was prevented by sufficient cause from appearing at the hearing, the  court can set aside an exparte decree. Specific provision has been made for preferring an appeal under Order 43 Rule 1(b) of the CPC when an order is passed under Order 8 Rule 10 of the CPC and an application Under Order 9 Rule 13 will not be entertainable in the garb of “in any case” mentioned in the provision of Order 9 Rule 13 of the C.P.C. Moreover, the decision referred in AIR 1991 (Andhra Pradesh) 69 was passed on 30.8.1990 when the Indian C.P.C. was amended in 1976 and Rule 1 (b) of Order 43 was deleted. ‘In any case’ mentioned in rule 13 of order 9 of the Code of Civil Procedure can only be entertained when it is found is that the summons of the suit was not properly served or that the defendant was prevented by sufficient cause in appearing on the date of hearing of the suit.
  3. 25.       By amending Rule 1 of Order 8 of the C.P.C. provision has been made to file written statement within the time not exceeding two months from the 1st date of hearing. But before amendment there was no specific time limit in the CPC for filing written statement.  Before amendment it was in the discretion of the Court to allow time to the defendant to file written statement but after amendment the written statement is required to be filed before the first hearing or within 2 months. The defendants on 11.9.2005, 18.10.2005, 24.11.2005 and 22.1.2006 took four adjournments for filing written statements and the court by order No. 12 dated 22.1.2006 allowed time with a cost of Tk. 700.00 and directed the defendant to file written statement on 6.2.2006 with a direction that the suit would be taken up for exparte decision in case of failure of the defendant to file written statement on that date. On the fixed date on 6.2.2006 the defendant appointed a new lawyer who again prayed for time to file written statement. On the previous date they were allowed time to file written statements with cost even then on the next date without filing any written statement they again prayed for adjournment. The defendants had the opportunity to avoid exparte judgment by filing a written statement with some facts and thereafter they could file additional written statement but the defendant without filing written statements prayed for adjournment, so, the Court did not allow time and proceeded with the exparte hearing. It does not appear from the order sheet that the learned Advocate thereafter prayed for any adjournment or that he retired from the case. When the Court proceeded for hearing of the case exparte the learned Advocate for the defendant-opposite party was present in Court but did not take any step. It has been urged that the learned Advocate for the defendant was debarred from appearing in the suit when the same was taken up for hearing but there is no evidence before us to show that learned Advocate of the defendant was not allowed to appear in the suit.
  4. 26.       From the impugned order it  appears that the learned Joint District Judge refused to reject the miscellaneous case on referring the amended provision of Rule 13 A  of Order 9 of the C.P.C.  The new provision of Rule 13A of order 9  has been brought in the C.P.C. to avoid delay and expedite disposal in setting aside the exparte decree with cost without requiring the defendant to adduce evidence if an application for setting aside decree is filed within thirty days from the date of decree.   But in the present case, the defendant was very much before the Court. He took four adjournments for filing written statements but ultimately they failed to file the same and the Court passed the exparte judgment which comes within the meaning of Order 8 Rule 10 of the Code of Civil Procedure and the same was appealable under the provision of Order 43 Rule 1(b) of the Code of Civil Procedure. So, the learned Joint District Judge was not justified in rejecting the petitioner’s prayer for rejecting the miscellaneous case as being not entertainable. We find substance in the Rule.

        In the result, the Rule is made absolute without any order as to cost. The impugned order No. 20 dated 3.7.2006 is set aside. The miscellaneous case No. 24 of 2006 of the 1st Court of joint District Judge,  Khulna is rejected as being not maintainable. The defendant opposite parties have the opportunity to prefer an appeal as per provision of law.

Ed. 

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