JUDGMENT R.R.K. Trivedi, J.
1. This appeal is from the order dated 1st May. 1998, passed in Misc. Case No. 28/74 of 1995 by the learned VIIth ACMM, Kanpur Nagar, by which the application for setting aside the decree dated 17.1.1995 in Original Suit No. 1247 of 1992 has been rejected.
2. The facts in short giving rise to this appeal are that plaintiff-respondent No. 1. Raj Kumar Agarwal filed Original Suit No. 1247 of 1992 for a decree of mandatory injunction for specific performance (by defendant-appellant and defendant-respondent Nos. 2 to 5) of agreement dated 25.1.1988 in respect of premises No. 7/209 measuring 1668 sq. yards situated in Swaroop Nagar, Kanpur Nagar and further to execute the sale deed in favour of plaintiff-respondent No. 1 and deliver possession of the premises in dispute to him and in case of their failure, the Court may execute the sale deed in his favour. It was also prayed that a declaration may be made to the effect that any sale deed in respect of premises in dispute executed by the defendant-respondent Nos. 2 to 5 in favour of defendant-appellant is a nullity and is not binding on plaintiff-respondent No. 1. In this suit, summons were issued for service on defendants fixing date for filing written statement. Thereafter within period between 7.5.1993 to 1.12.1994, several opportunities numbering more than a dozen were given to file written statement but defendant failed to file any written statement. On 1.12.1994 an application No. 92C was filed by plaintiff-respondent No. 1 for Invoking the provisions of Order VIII, Rule 10, C.P.C. to decree the suit in absence of written statement. Against this application, an objection (93C) was filed by the defendant-appellant that written statement has been filed on her behalf. On 17.1.1995 aforesaid application and objection were heard by the Court below. It was found that defendant-appellant has filed no written statement and the allegations made in the objection were misleading. The Court, consequently, proceeded under Order VIII, Rule 10, C.P.C. and decreed the suit with cost in absence of written statement. The defendant-appellant on 16.2.1995 filed an application under Order IX, Rule 13, C.P.C. for setting aside the decree dated 17.1.1995 treating the same an ex parte decree against her. The application was rejected as not maintainable under Order IX, Rule 13. C.P.C. by the impugned order dated 1st May, 1998 aggrieved by which the present appeal has been filed in this Court.
3. On 18.5.1999 the learned counsel for the parties agreed that in this appeal question of law involved is regarding the maintainability of the application under Order IX. Rule 13, C.P.C. filed for setting aside the decree passed applying the provision of Order VIII, Rule 10, C.P.C. and the appeal may be finally decided at the admission Stage itself on the basis of the aforesaid question of law. Shri Z.M. Naiyer along with Shri A. N. Sinha and Shri Sandeep Saxena, learned counsel for the appellant and Shri Janardan Sahai, learned counsel appearing for plaintiff-respondent No. 1 have been heard.
4. Learned counsel for the appellant has submitted that the application of the appellant for setting aside ex parte decree dated 17.1.1995 was legally maintainable as the decree was passed ex parte against her. In this connection, it has been submitted that absence of pleading of party is akin to or similar or equivalent to personal non-appearance and in both cases provisions of Order IX. Rule 13, C.P.C. shall be applicable and the view taken by the learned Court below is erroneous in law. Learned counsel for the appellant also submitted that before passing the decree dated 17.1.1995 neither evidence of the plaintiff-respondent was recorded nor the reasons have been assigned for decreeing the suit and such a decree is illegal and is liable to be set aside. Learned counsel has placed reliance on following rases ;
* M/s. Kuuarp Industries, Bangalore and another v. State Bank of Mysore, AIR 1985 Kar 77;
* Smt. Sudha Devi v. M. P. Narayanan and others, AIR 1988SC 1381 ;
* Gujrat Co-operative Oil Seeds Growers Federation v. Smt. Ramesh Kanta Jain, AIR 1994 Del 367 (DB) :
* Laxman Zingraji Adhau v. Shushlla Zinguji Thakre, 1994 ALJ 690 ;
* Commissioner of Income-tax v. Surendra Singh Pahwa and others. AIR 1995 All 259 ;
* Smt. Munni Devi and others v. XIIth Addl. District and Sessions Judge, Kanpur Nagar and others, 1996 (2) ARC 464 ;
* M/s. Rajhans Khandsari Udyog and another v. Canara Bank and others, 1998 (2) JCLR 227.
5. Learned counsel for the respondent No. 1, on the other hand, submitted that in the present case. the defendant-appellant was given several opportunities for filing wrilten statement but it was not filed and she was adopting dilatory tactics. Learned counsel relying on para 3 of the counter-affidavit submitted that defendant-appellant was given several opportunities to file written statement and for this purpose case was adjourned on 18 dates between 1993 to 1994 but the written statement was not filed deliberately. When written statement was not filed on 1.12.1994 also, an application 92C was filed by -the plaintiff Invoking provisions of Order VIII, Rule 10. C.P.C. to decree the suit on the basis of uncontroverted averments contained in the plaint in the absence of any written statement. Against this application objection was filed by defendant-appellant alleging that written statement has been filed. On 17.1.1995 the Court heard both the parties and checked the record, however, no written statement was found filed as alleged in the objection. The Court recorded finding that defendant-appellant tried to mislead the Court by raising incorrect objection that written statement has been filed. In the facts and circumstances of the case the Court below was perfectly justified in decreeing the suit. The order dated 17.1.1995 decreeing the suit was passed in presence of the parties and after hearing their counsel and such a decree could not be termed ex parte and the application under Order IX. Rule 13. C.P.C. was not maintainable and the application of the defendant-appellant for setting aside the decree has rightly been rejected. The order dated 1st May, 1998 does not suffer from any illegality. Learned counsel for the respondents has placed reliance on the following cases :
* Vinayak Shreedhar Kulkarni v. Chintaman Vaman Kulkarni, AIR 1038 Bom 470;
* The Traders' Bank Ltd. v. Avtar Singh, AIR 1988 Del 55 ;
* Satya Narayan Sah v. Brij Gopal Mundra, AIR 1991 Pat 60;
* Laxman Zingraji Adhau v. Shushila Zinguji Thakre, 1996 (2) CCC 164 (Bom) ; and * Bishan Singh v. IXth Addl. District Judge, Agra and others, 1997 (1) AWC 2.98 (NOC).
6. We have carefully considered the rival submissions of learned counsel for the parlies advanced for and against the maintainability of the application under Order IX, Rule 13, C.P.C. for setting the decree dated 17.1.1995. For resolving this controversy, it is necessary to have a look into the legislative changes brought about by the Legislature in the provisions contained in Order VIII, Rule 10. C.P.C. by Central Act No. 104 of 1976, namely, the Code of Civil Procedure (Amendment Act, 1976). Order VIII, Rule 10, C.P.C. before amendment was 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."
7. Order VIII, Rule 10. C.P.C. as it stands now after amendment of Act of 1976 reads as under :
"Where any party from whom a written statement is required under Rule 1 or Rule 9, fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce Judgment against him. or made such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up."
8. Before amendment in Order VIII, Rule 10, C.P.C., against an order passed under this Rule an appeal was provided under Order XLIII, Rule 1 (b) read with Section 104. C.P.C. However, this right to appeal was taken away and clause (b) was omitted w.e.f. 1.2.1977 by Amendment Act, 1976. It is well-known that prior to this amendment, in suits defendants used to take long time in filing written statement and, consequently, the decisions in the suits were delayed considerably. The legislative intent behind the aforesaid amendment in Order VIII. Rule 10, C.P.C. and in Order XLIII. Rule 1, C.P.C. was to eradicate this mischief. From perusal of the judgments cited by the learned counsel for the parties. It is clear that High Courts of the country have expressed different views regarding maintainability of the application under Order IX. Rule 13. C.P.C. for setting aside the order passed under Order VIII, Rule 10. C.P.C. The first view is that for setting aside an ex parte order passed under any provision of C.P.C. Including an order passed under Order VIII, Rule 10, C.P.C., an application under Order IX, Rule 13, C.P.C. shall be maintainable. Reasoning advanced in support of this view is that by use of words "a decree shall be drawn up" in Order VIII, Rule 10, C.P.C. by the Amendment Act. 1976, Legislature intended to provide better remedies to the party to suffer a decree passed under Order VIII, Rule 10, C.P.C. Help has also been taken from the provisions contained in Order XVII, Rules 2 and 3. C.P.C. by saying that hearing of the suit starts from the date the defendant puts in appearance under Order VIII, Rule 1, C.P.C. and is required to file written statement. It has also been said that words "In any case in which a decree is passed ex parte against the defendant" used in Order IX, Rule 13, C.P.C. are wide enough to cover all cases of ex parte decrees no matter for what reason the ex parte decree has been passed. For the aforesaid view see following cases :
* N. Jayraman v. Glaxo Laboratories India Ltd., AIR 1981 Mad 258;
* M/s. Kuvarp Industries, Bangalore and another v. State Bank of Mysore, AIR 1985 Kar 77 ; and * Gujrat Co-operative Oil Seeds Growers Federation v. Smt. Ramesh Kanta Jain, AIR 1994 Del 367.
9. The second view is that where the defendant appeared but did not file written statement after being granted many adjournments and the judgment followed by a decree, it could not be called an ex parte decree within the meaning of Order IX. Rule 13, C.P.C., hence the application under Order IX, Rule 13, C.P.C., for setting aside such decree could not be maintainable as the decree passed was not an ex parte decree. For this view see judgments :
* Traders' Bank Ltd. v. Avtar Singh, AIR 1988 Del 55 ;
* Satya Narayan Sah v. BriJ Gopal Mundra, AIR 1991 Pat 60; and * Laxman Zingraji Adhau v. Shushila Zinguiji Thakre, 1996 (2) CCC 164 Bom.
10. There is third view wherein view has been taken by the High Courts that if the order under Order VIII, Rule 10, C.P.C., is passed and a decree is drawn up in absence of the defendant or his counsel it shall be ex parte decree and against such order an application under Order IX, Rule 13, C.P.C., shall be maintainable. In judgments taking this view it has also been held that in cases where the disposal in form purports to be one on merit but if it is found to be in substance one for default a petition under Order IX, Rule 13. C.P.C. shall be maintainable. What the Court has to look into is not the form and the judgment but its substance. Thus, in case the Court has passed the order under Order VIII. Rule 10, C.P.C. without applying its mind to the fact of the case as to whether the plaintiff is entitled for a decree or without asking plaintiff to prove his case by adducing evidence in such case also though the order appears to have been passed on merits in substance it is ex parte and an application under Order IX, Rule 13, C.P.C. shall be maintainable. For this view see following cases :
* M/s. M. Manik Peter and others v. K. Surendranathan, AIR 1988 Ker 161 ;
* A. K. P. Haridas v. V. A. Madhvi Amma and others, AIR 1988 Ker 304:
* Laxman Zingraji Adhau v. Shushila Zinguji Thakre, 1994 ALJ 690; and * Commissioner of Income-tax v. Surendra Singh Pahwa and others, AIR 1995 All 259.
11. We have considered the reasonableness and correctness of the aforesaid three views and with great respect to learned Judges, in our opinion, the first view does not appear to be in consonance with the legislative intent behind the Amendment Act, 1976 and the object sought to be achieved. It is settled law that if the language used in the legal provision is plain and simple and does not suffer from any ambiguity, the Court should avoid to add or subtract words in Interpreting the provision. In our opinion, in amending Order VIII, Rule 10, C.P.C. and in providing that decree shall be drawn up the Legislature only intended to give right of appeal to both sides. As against an order passed under Order VIII, Rule 10, C.P.C., the right of appeal provided under clause (b) of Order XLIII, Rule 1, C-P.C. was taken away, it cannot be inferred that Legislature intended to open right to move application under Order IX, Rule 13, C.P.C. for setting aside such order and decree. Under Order XLIII, Rule 1 (b) C.P.C.
as it stood before amendment, an appeal could be filed both by plaintiff and defendant if the order under Order VII, Rule 10, C.P.C. went against them. If the reasoning of the Courts taking first view is accepted, then the defendant will have two remedies open for him. one by filing regular appeal against an appeal drawn up and another under Order IX, Rule 13, C.P.C. but the plaintiff, if the order is passed against him and decree is drawn will have only one remedy, i.e., filing of regular appeal though he was not in default in any way, like defendant who failed to file written statement even though required by the Court. The Legislature intervened to prevent the defendant from taking long time in filing written statement. Thus, it is difficult to conceive that such a consequence would have been contemplated under Amendment Act, 1976.
12. The reasoning that the words used "in any case in which decree is passed ex parte against the defendant" in Order IX, Rule 13, C.P.C. are wide enough to cover all kinds of decrees passed ex parte also does not appears to be justified. Such interpretation is not possible if the entire provisions contained in Order IX, Rule 13, C.P.C. are taken into consideration. The conditions that the ex parte decree contemplated under Order IX. Rule 13, C.P.C. can be set aside if the Court is satisfied that summon was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called for hearing. cannot be satisfied if a decree is drawn up on the basis of an order under Order VIII, Rule 10, C.P.C. where the defendant put in appearance but failed to file written statement. The help of provisions contained in Order XVII. Rules 2 and 3 C.P.C. could also not be taken as in Rule 2 of Order XVII, C.P.C. there is specific reference of Order IX, C.P.C. and the Court has been given discretion to dispose of the suit in one of the modes provided in the aforesaid order whereas in Order VIII, Rule 10. C.P.C., no such reference of Order IX, C.P.C. has been made. The view taken that hearing of suit starts from the date defendant puts in appearance also does not appear to be sound and correct. It is settled legal position that hearing of the suit commences when the issues are struck by the Court after applying mind to the pleadings of the parties. Stage of suit under Order VIII. Rule 10. C.P.C. Is of filing written statement, set off or the counter claims. If the provisions contained in Rules 1 to 10 of Order VIII, C.P.C. are considered together and in entirely, it is apparent that stage of the suit under this Order cannot be termed as that of hearing, thus, in our opinion, for taking the first view by the Courts the provisions of Order VIII, Rule 10. C.P.C. and Order IX, Rule 13, C.P.C. have been stretched too far that for setting aside an order passed under Order VIII, Rule 10. C.P.C. an application under Order IX. Rule 13, C.P.C. may be filed. We, thus, express our respectful disagreement with this view.
13. So far as the second view is concerned, in our opinion, if the order under Order VIII, Rule 10, C.P.C. has been passed in presence of the defendant for his failure to file written statement and a decree is drawn up, application under Order IX, Rule 13, C.P.C. will not be maintainable. The language used is plain and simple and does not admit any kind of ambiguity. We are in respectful agreement with this view.
14. So far as third view is concerned, in our opinion, the view taken is based on sound principles of law and the cases contemplated under this view are as a matter of exception to the second view. If the order is passed under Order VIII. Rule 10. C.P.C. and a decree is drawn up in absence of defendant or his counsel there is no doubt that such a decree would be ex parte and an application under Order IX, Rule 13, C.P.C. would be maintainable at the instance of defendant for setting aside the ex parts decree. In such a case, he could satisfy the Court that he was prevented by any sufficient cause from appearing when the suit was called for hearing. The order passed in such case under Order VIII, Rule 10, C.P.C. and decree drawn up though appear to be on merits and in default of filing written statement but nonetheless it was passed in absence of defendant and it could be termed ex parts. Another exception would be A case where the Court passed the order under Order VIII, Rule 10, C.P.C. simply on the ground that the defendant did not file written statement and failed to examine the case of the plaintiff as to whether he was entitled for a decree or not. It shall also cover such cases where the Court below has not called upon the plaintiff to give evidence nor the plaintiff gave any evidence in support of his case. The Court remains under obligation to apply Its mind to the facts stated in the plaint and to assess whether the decree could be passed or not. Even suit can be dismissed in absence of written statement, for which a sufficient scope has been left in Order VIII, Rule 10. C.P.C. by using words "or make such order in relation to the suit as it thinks fit". Thus, under Order VIII, Rule 10, C.P.C., it is not that the Court could only pronounce judgment against the defendant who failed to file written statement but even the suit could be dismissed. In such a situation, the Court was under obligation to see that the suit is decreed only when the plaintiff is entitled for the same and he has proved his case.
15. From the aforesaid discussions, in our opinion, for setting aside the order under Order VIII. Rule 10, C.P.C., an application under Order IX, Rule 13, C.P.C. will not be maintainable except in following two circumstances :
(a) Where the order has been passed in absence of the defendant or his counsel :
(b) Where the order has been passed merely for default in filing written statement and does not contain any reason showing how the plaintiff is entitled for a decree and has been passed without calling upon the plaintiff to adduce evidence to prove his case or the plaintiff has failed to produce any evidence to prove his case.
16. If the facts of the present case are tested in the light of the aforesaid reasons, there is no doubt that the order dated 7.1.1995 was passed in presence of the parties. The Court below has recorded categorical finding that the order was passed in presence of the parties and after hearing them. However, a perusal of the order dated 17.1.1995 shows that it was passed merely in absence of the written statement of the defendant and without application of mind to the facts pleaded in the plaint. The order dated 17.1.1995 is being reproduced below :
izkFkZuk i= 72 lh&ij lquk x;kA izkFkZuk i= ij izfroknh dh vksj ls vkifk vk;h gS fd mUgksaus c;ku rgjhjh U;k;ky; esa nkf[ky dj fn;k gSA i=koyh ds voyksdu ls izfroknh ds }kjk nh x;h vkifk vlR;
ik;h tkrh gS rFkk blls ;gh fu"d"kZ fudkyk tkosxk fd izfroknh us U;k;ky;
dks /kks[kk nsus dh fu;r ls xyr vkifk nkf[ky dh gSA ,slh n'kk esa oknh dk izkFkZuk i= vUrxZr vkns'k&8] fu;e&10 Lohdkj fd;k tkrk gSA okn fdlh c;ku rgjhjh ds vHkko esa O;; lfgr fMxjh fd;k tkrk gSA i=koyh nkf[ky nrj gks*
17. Thus, in our opinion, such order would be termed ex parte and the application under Order IX. Rule 13. C.P.C. was maintainable. The order suffers from serious illegality and cannot be sustained. The ends of justice require that such an order should not be allowed to stand.
18. We wish, to stress that the Courts, while proceeding with the case with Order VIII, Rule 10, C.P.C. for the default of defendant in filing written statement, should call upon the plaintiff to adduce evidence to prove his case and should apply mind to the facts and evidence to arrive to the conclusion whether the plaintiff is entitled to some relief in the suit or otherwise.
19. For the reasons stated above, this appeal as well as application under Order IX, Rule 13, C.P.C. filed by the defendant-appellant are allowed. The impugned order dated 1.5.1998 passed in Misc. Case No. 27/74 of 1995 by learned VIIth ACMM, Kanpur Nagar and the order and decree dated 17.1.1995 passed in Original Suit No. 1247 of 1992 are set aside. The suit shall stand restored to its original number and shall be decided expeditiously in accordance with law, in any case within a year from the date a copy of this order is filed before the Court below after giving one opportunity to the defendant-appellant to file written statement. Considering the facts and circumstances of the case there shall be no order as to costs.