Case Note & Summary
The petitioner, Ashok Kundalrai Mohekar, was the owner of suit premises occupied by respondent Nos. 1 and 2 (National Textile Corporation Ltd.) as tenants paying monthly rent of Rs. 3085/-. The petitioner issued a notice dated 02.12.2004 terminating the tenancy and thereafter filed Regular Civil Suit No. 35 of 2005 on 14.01.2005 for possession. The respondents appeared and sought time to file written statement, which was granted multiple times. However, their application for further time (Ex. 14) was rejected on 07.07.2005, and the case was fixed for no written statement evidence. The petitioner filed his affidavit in lieu of evidence and documents. The plaintiff was examined but not cross-examined by the defendants. On 24.10.2007, the suit was decreed. The respondents then filed an application under Order 9 Rule 13 CPC to set aside the ex-parte decree, along with a delay condonation application. The Small Causes Court condoned the delay but rejected the application under Order 9 Rule 13, holding that despite sufficient opportunity, the written statement was not filed and the application was not maintainable. The respondents appealed, and the first appellate court allowed the appeal, setting aside the ex-parte decree, reasoning that the decree was not passed under Order 8 Rule 5 or Rule 10 CPC but was an ex-parte decree. The petitioner challenged this order in the present writ petition. The High Court examined the record and found that the trial court had rejected the application for time to file written statement and thereafter proceeded under Order 8 Rule 10 CPC. The court held that when a decree is passed under Order 8 Rule 10 for failure to file written statement despite sufficient opportunity, it is not an ex-parte decree under Order 9 but a decree on merits. Therefore, an application under Order 9 Rule 13 is not maintainable; the proper remedy is an appeal. The High Court set aside the order of the first appellate court and restored the trial court's order rejecting the application under Order 9 Rule 13.
Headnote
A) Civil Procedure - Ex-parte Decree - Order 9 Rule 13 CPC - Maintainability - Decree passed under Order 8 Rule 10 CPC for failure to file written statement despite sufficient opportunity - Application under Order 9 Rule 13 CPC held not maintainable as decree is not under Order 9 but under Order 8 Rule 10 - Proper remedy is appeal against such decree (Paras 7-9). B) Civil Procedure - Order 8 Rule 10 CPC - Scope - When defendant fails to file written statement despite sufficient opportunity, court may pronounce judgment against him - Such decree is not ex-parte under Order 9 but a decree on merits under Order 8 Rule 10 - Remedy is by way of appeal, not application under Order 9 Rule 13 (Paras 7-9).
Issue of Consideration
Whether an application under Order 9 Rule 13 of the Code of Civil Procedure, 1908 is maintainable to set aside a decree passed under Order 8 Rule 10 of the Code when the defendant failed to file written statement despite sufficient opportunity.
Final Decision
The High Court allowed the writ petition, set aside the order of the first appellate court dated 02.04.2013, and restored the order of the Small Causes Court rejecting the application under Order 9 Rule 13 CPC.
Law Points
- Order 9 Rule 13 CPC not maintainable when decree is passed under Order 8 Rule 10 CPC
- Order 8 Rule 10 CPC applies when written statement not filed despite sufficient opportunity
- Ex-parte decree under Order 8 Rule 10 CPC is not under Order 9 CPC
- Remedy against decree under Order 8 Rule 10 CPC is appeal not application under Order 9 Rule 13 CPC
