Rupsha Fish and Allied Industries Ltd. Vs. The Premier Bank Limited and others, 1 LNJ (2012) 386

Case No: Civil Revision No. 2448 of 2006

Judge: Farid Ahmed,

Court: High Court Division,,

Advocate: Mr. Ajmalul Hossain QC,Mr. Abdul Quayum,,

Citation: 1 LNJ (2012) 386

Case Year: 2012

Appellant: Rupsha Fish and Allied Industries Ltd.

Respondent: The Premier Bank Limited and others

Subject: Ex-parte Decree,

Delivery Date: 2009-08-17

HIGH COURT DIVISION
(Civil Revisional Jurisdiction)
 
Mr. Farid Ahmed,   J.
and
Mr. Obaidul Hassan, J.

Judgment
17.08.2009
 
Rupsha Fish and Allied Industries Ltd.
...Petitioner
Vs.
The Premier Bank Limited and others
...Opposite Party.
 
Code of Civil Procedure (V of 1908)
Order VIII, rule 10
Order IX, rule 13
Order XLIII, Rule 1(b)
After rejecting the defendant’s application for adjournment the learned judge passed the ex-parte judgment. Neither the newly appointed lawyer then filed application for further adjournment nor did he take part in the hearing nor did he retire from the suit. It was fixed on 06.02.2006 for filing written statement. In default the court will take ex-parte decision. No written statement was filed on the fixed date. The Court passed the judgment for failure of the defendants to file the written statement which comes within the purview of Order VIII, rule 10 of the Code. An order passed under Order VIII, rule 10 of the Code is an appealable order under order XLIII, rule 1(b) of the Code. But in India the provision of appeal has been deleted.

The ex-parte 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. …(16)

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.” …(17)
 
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”..... .....(20)
 
Code of Civil Procedure (V of 1908)
Order VIII, rule 10
Order IX, rule 13
Order XLIII, Rule 1(b)
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 13A  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 ex-parte 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 miscellany-eous case as being not entertainable. ...(26)
 
Damodar Das Vs. Raj Kumar Das , AIR 1922 (Patna) 485; Bothra and others Vs. Kedar Nath Bothra and others, A.I.R. 1938 (Calcutta) 74; Md. Nurul Haque Vs. Sonali Bank of Bangladesh and another, 39 DLR 223; Narendra Patra Vs. Shiba Narayan Taldi and another, A.I.R. 1995 Orissa 45; Innovation Apartments Flat Owners Association, Secundrabad Vs. M/S. Innovation Associates, Secundrabad, AIR 1991 Andhra Pradesh 69; N. Jayaraman Vs. M/S. Glaxo Laboratories India Ltd., AIR 1981 Madras 258; M/S. Kuvarp industries Bangalore Vs. State Bank of Mysore, AIR 1985 (Kant) 77; M.S. Manick Peter and others Vs. K. Surendra Nathan, AIR 1988 Kerala 161; Most. Hakumat Bibi Vs. Imam Din and others, PLD 1987 (S.C.)-22 ref.
 
Mr. Abdul Quayum with
Mr. Probir Halder and
Mr. Swarup Kanti Deb
....For the Petitioner .

Mr. Ajmalul Hossain QC with
Mr. A.B.M. Siddiqur Rahman Khan and
Mr. Affan Ahmed Siddiq
....For the Opposite Parties.

Civil Revision No. 2448 of 2006.
 
Judgment
Farid Ahmed, J:

        This rule was issued calling upon the opposite parties to show cause as to why the impugned order No. 20 dated 3.7.2006 passed by the learned Joint District Judge, 1st Court, Khulna in entertain-ning the Miscellaneous Case No. 24 of 2006  under Order 9 Rule 13 should not be set aside and or such other or further order or orders passed as to this Court may seem fit and proper.
 
2.     The petitioner on 1.8.2005 instituted Money Suit No. 6 of 2005 before the 1st Court of Joint District Judge, Khulna agaisnt the opposite parties for a decree for Tk. 53,97,3,000/- as compensation for damage and for mandatory injunction directing the defendant-opposite parties to handover key of chamber of the factory and to restrain them from interfering to the running of the business of the plaintiff-petitioner namely ‘Rupsha Fish and Allied Industries’.
 
3.     The learned court by order dated 11.9.2005 fixed up 18.10.2005 for filing written statements and thereafter consecutively on 4 dates the defendant-opposite parties failed to file written statements. The learned Joint District Judge by order No. 12 dated 22.1.2006 as last chance allowed time and fixed up 6.2.2006 for filing written statements with a cost of Tk. 700/-, in default, for exparte hearing and decision. On 6.2.2006 the defendants appointed a new lawyer and again filed an application for 15 days adjournment to file written statements. The Court rejected the prayer for adjournment and took up the case for exparte hearing and decreed the suit exparte.
 
4.     Against the said exparte decree the defendant opposite parties have filed  a case being Miscellaneous Case No. 24 of 2006  under Order 9 Rule 13 of the Code of Civil Procedure stating that defendant-opposite parties could not prepare the written statements as the Head Office of the Bank did not supply the necessary facts and documents in support of their case and that they  engaged a new Advocate but he could not prepare the written statements and as such prayed for time, the learned Court rejected the prayer for time and passed the exparte decree. In the miscellaneous case the petitioner filed an application stating that the impugned exparte order was passed under Order 8 Rule 10 of the code of Civil Procedure which is appealable, so, the miscellaneous petition under Order 9 Rule 13 of the Code of Civil Procedure is not maintainable.
 
5.     The learned Joint District Judge by order No. 20 dated 3.7.2006 rejected the  application for rejection of the miscellaneous case on the finding that in order to avoid delay and for expeditious disposal of the case the provision of   Rule 13 (A) of Order 9 has been inserted in the Code of Civil Procedure.
 
6.     Being aggrieved thereby, the petitioner moved this court and obtained the present Rule.  
 
7.     The defendant-opposite parties have filed a counter affidavit controverting the statements made in the revisional application and stated that  in their miscellaneous case they  stated that for bonafide reason they failed to file written statements within the time granted by the Court and that as per  provision of Rule 13A of Order 9 of the Civil Procedure Code, to ensure the expeditious hearing of the case the learned court rejected the petitioner’s application for rejection of the miscellaneous case and that the said miscellaneous case is maintainable.
 
8.     Mr. Abdul Quayum with Mr. Probir Halder, learned Advocates appearing on behalf of petitioner-company have submitted that the exparte order was passed as per provision of Order 8 Rule 10 which is appealable under Order 43 Rule 1(b) of the Code of Civil Procedure and as such the miscellaneous case is not maintainable.  Mr. Probir Halder thereafter has submitted that petitioner took specific ground that an appeal lies against the order passed under Order 8 Rule 10 of the Code of Civil Procedure and the learned Judge quoted the submission of the petitioner in his judgment but without considering the said provision of law illegally rejected the petitioner’s application for rejection of the miscellaneous case.
 
9.     Mr. Ajmalul Hossain, learned Senior Counsel appearing with Mr. A.B.M. Siddiqur Rahman Khan and Mr. Mamun Chowdhury learned Advocates have submitted that the order passed by the Joint District Judge in the money suit is an exparte decree within the meaning of Order 9 Rule 6 of the C.P.C and as such an application under Order 9 Rule 13 of the C.P.C is attracted. Mr. Ajmalul Hossain thereafter has submitted that the judgment passed  in the money suit deemed to be a decree under Order 17 Rule 2 of the C.P.C and the remedy lies under Order 9 Rule 13 of the C.P.C. He further has submitted that 1st part of the Order 9 Rule 13 of the C.P.C defines that in case of every exparte decree an application under Order 9 Rule 13 is maintainable and the present miscellaneous case being an application against the exparte decree under the 2nd limb of the Order 8 Rule 10 the proper forum is an application under Order 9 Rule 13 of the C.P.C.  He lastly has submitted that the exparte judgment passed in the Money suit being not a judgment within the  meaning of Section 2 (9) and Order 20 Rule 4 of the C.P.C the  application under Order 9 Rule 13 is entertainable.
 
10.    Certified copy of the entire order sheet of the Money Suit No. 6 of 2005 have been annexed with the revisional application as Annexure-B. From  order No. 12 dated 22.1.2006 it appears that previously on 4 occasions adjournment were allowed for filing written statements but the defendant did not file any written statements. The Court by that order again granted adjournment for 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.
 
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.
 
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.
 
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.
 
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”........
 
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.  
 
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.
 
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.”
 
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.” 
 
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.
 
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”...............
 
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.
 
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 provice 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” .............
 
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.
 
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, Secundrabad 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.
 
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.
 
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.