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Civil Appeal No. 18 of 1968, decided on 15th May 1969.

Ss. 104(1)(i) & 100 and O. VIII, r. 10 & O. XLIII, r. 1(b)‑Order XL111, r. 1 governed by provision of S. 104(1)(i)‑Second appeal under S. 100 from an order passed in appeal preferred under r. 1(b), O. XLIII--- Not competent‑Order passed under O. VIII, r. 10 appealable under O. XLIII, r. I(2) and thus covered by S. 104(l)(i)‑No second appeal lies against such order‑Memorandum filed wrongly as second appeal treated as revision.

Ss. 104(2) & 115 Appeal and revision‑Restriction imposed by S. 104(2) bars only a second appeal‑High Court has wide jurisdiction to allow a second appeal filed wrongly to be treated as a revision subject to conditions enumerated in S. 115.

O. VIII, rr. 9 & 10 Words "so required" fn r. 10 refer to written statement required under r. 9‑No written statement at all having been filed by defendant‑Judgment of trial Court against defendant, under r. 10, in circumstances, held, clothed with material irregularity.

Rule 10 of Order VIII, C. P. C. refers to the written statement required under the provision of rule 9 and, therefore, the Court has no authority under Order VIII, rule 10 to pronounce judgment against a defendant who fails to file a written statement that is not covered by the provision of rule 9, Order VIII.

Where the trial Court, on failure of the defendant to appear and to file any written statement, Pronounced judgment in favour of the plaintiff purportedly under Order VIII, rule 10, C. P. C. the High Court set aside the judgment and observed "In the present case no written statement was at all filed, there fore, the question of demanding a subsequent written statement from the defendant did not arise at all, and as such the judg ment pronounced under Order VIII, rule 10 is clothed with material irregularity"

A. K. Moopan v. A. Karupana A I R 1928 Rang. 261 and Nagaratnam Pillai v. Kamala Thammal A I R 1945 Mad. 299 rel.

O. VIII, r. 10 & O. XVII, r. 2 read with O. IX, r. 6‑Defendant making appearance once but failing to appear and to file written statement on adjourned date‑Trial Court pronouncing judgment under O. VIII, r. 10‑Action of trial Court, held, not correct‑Case, held, covered by O. XVH, r. 2 and trial Court, in circumstances, should have proceeded ex parte under O. IX, r. 6.

O. VIII, r. 10 Discretion of Court "to pronounce judgment" or "to make such order as it thinks fit"‑Must be exercised on judicial principles and not in arbitrary or capricious manner‑No written statement at all filed by defendant‑Trial Court, in absence of evidence in support of claim of plaint, pronouncing judgment against defen dant‑Discretion exercised by trial Court, in circumstances, held, not proper.

O. VIII, rr. 1 & 10 Defendant cannot be directed to file written statement unless supplied with copy of plaint‑Defendant not supplied copy of plaint‑Judgment of trial Court, under r. 10, against defendant, for failure to file written statement, in circumstances, held, materially irregular.

Defendant can be ordered to file a written statement under Order VIII, rule 1 only when he is furnished with a copy of the plaint. A defendant cannot possibly answer the claim against him if he is not supplied with a copy of the plaint. An order to file a written statement without first furnishing the defendant with a copy of the plaint would amount to a material irregularity and would defeat the ends of justice. Rule 10 of Order VIII would apply when the defendant is ordered to file written statement within certain time and he fails to do so but before ordering the defendant to file the written statement, it is necessary to provide him with a copy of the plaint so that he be in a position to file written statement.

Where the defendant, without having been supplied with a copy of the plaint, was directed to file written statement and upon his failure to do so, the trial Court pronounced judgment in favour of plaintiff under Order VIII, rule 10 the High Court held that the Court had acted in exercise of its jurisdiction with material irregularity.

Ghulam Haider Gagroo for Appellant.

Tassadaq Hussain Shah for Respondent.

Date of hearing: 13th May 1969.

Abdul Qadoos purchased land measuring 2 kanals and 10 marlas under survey Nos. 187 and 209 situate in village Saidpura, Tehsil Hattian from Mst. Basi for an ostensible consideration of Rs. 1,500 by a registered sale‑deed dated 28‑12‑65. Abdur Rehman respondent instituted a pre‑emption suit in the Court of Sub‑Judge, Muzaffarabad, on 26‑11‑56. On 1‑5‑1967 Mr. Maqbool Ahmed Qureshi Vakil appeared in the case when it was called, who was directed by the Court to put in written statement on 24‑5‑67. On 24‑5‑67 the defendant was provided, on payment of cost, a further opportunity for filing written statement and the case was adjourned to 10‑6‑67, on which date as there was failure on the part of the defendant to appear in the Court and plead his defence, the judgment was pro nounced in favour of the plaintiff under Order VIII, rule 10, C. P. C.

The appeal before the District Judge filed, by the vendee Abdul Qadoos was dismissed on 21‑2‑68. He has now preferred second appeal before this Court.

Sayed Tassadaq Hussain Shah learned Advocate for the respondent raised a preliminary objection to the effect that no second appeal is competent in this case. His contention is that section 104, C. P. C. limits a party's right of appeal against an order to the cases specified in clauses (ff) to (i) and by sub section (2) that right is further restricted only to one appeal.

It was contended by Mr. Ghulam Haider Gagroo learned Advocate for the appellant that the appellate order of the learned District Judge amounts to a decree and as such he is entitled to "second appeal" under the provisions of section 100, C. P. C.

A second appeal will always lie to the High Court from an appellate decree of a Court subordinate to the High Court unless restricted by some express provisions of law. Section 104 is one of the provisions of C. P. C. which bars second appeal in such cases. In a. case where judgment has been pronounced under Order VIII, rule 10, appeal is provided by Order XLIII, rule 1, sub‑clause (2). An order passed on appeal under sub section (1) of section 104 is not open to any further appeal. Section 104 is restrictive in character and places a limit on the right of a party to appeal against an order in cases expressly enumerated in clauses (f) to (i). Subsection (2) of section 104 further confines that right only to one appeal, Appeal is purely a creature of statute and unless a right of appeal is clearly and expressly given by the statute it does not exist nor is there any scope for inferring such rights by implication. An order which is one specified in section 104 and which is also appeal-able as a decree the right of appeal is governed only by the provisions of section 104, C. P. C., therefore, no second appeal would lie in such cases.

Mr. Gagroo learned counsel for the appellant persisted to his point for sometime but ultimately conceded that lie had no such right and that .the second appeal has been wrongly filed. He, however, requested that the appeal may be treated as a revision. The restriction in subsection (2) of section 104 only bars a second appeal and does rot restrict the right of revision. "In such cases where no second appeal lies but an appeal is, wrongly filed the Court has wide discretion to allow the second appeal to be treated as a petition for revision provided the conditions of section 115, C. P. C. are satisfied". Therefore, I allow the conversion of second appeal into revision applica tion and proceed to examine whether conditions under section 115, C. P. C. are satisfied for interference by this Court. in exercise of its revisional powers.

It was urged by Mr. Ghulam Haider Gagroo that Order VIII, rule 10 gives power to the Court to pronounce judgment only in cases where, the written statement has been demanded by the Court under Order VIII, rule 9. According to him no written statement was filed in this case at all, therefore, the question of subsequent pleadings did not arise and the Court was not justified in pronouncing judgment under Rule 10 of Order VIII, C. P. C. His contention is that the words so required occurring in Rule 10 refer to Rule 9. There seems much force in his contention. Under Order VIII, rule 9 if the pleadings of either party are too vague, the Court may require such party to file a further and fuller statement. It has been held by the High Court of Rangoon in A I R 1928 Rang. 261 that: -

"On failure by defendant to file his written statement on the day fixed, the Court cannot proceed to pronounce, judgment forthwith, without, at least, hearing formal evidence. The permission given to the Court to pronounce the judg ment refers to a written statement which has been demanded by the Court under Order VIII, rule 9, after the Court has proceeded to hearing, in which case there are materials before the Court on which it could form a judgment."

In A I R 1945 Mad. 299 it was held by the Division Bench that :‑

"Rule 10 relates only to Rule 9 and cannot be taken to relate to Rule 1; the word so occurring in Rule 10 cannot possibly be related back to Rule 1. It must refer to something which is in close juxtaposition to itself and that can only be the provision of Rule 9. A Court has therefore no jurisdiction to pronounce judgment under Rule 10 against the defendant who has failed to file his written statement; View of Seshagiri Aiyer, J., in A I R 1918 Mad. 1163 Approved."

Respectfully agreeing with the above view I hold that Rule 10 of Order VIII refers to the written statement required under the provision of Rule 9 and, therefore, the Court has no authority under Order VIII, rule 10 to pronounce judgment against a C defendant who fails to file a written statement that is not covered by the provision of Rule 9, Order VIII.

In the present case no written statement was at all filed, therefore, the question of demanding a subsequent written statement from the defendant did not arise at all, and as such the judgment pronounced under Order V III, rule 10 is clothed with material irregularity.

There is another aspect of the case. It was not only a case of default in filing a written statement as required by the Court but also a case of default of appearance as well. In short it was a case of double default. Order VIII, rule 10 clearly implies a default in filing written statement only. When there is double default in addition to the default in filing the written statement so required, the rule that would come into operation under the circumstances of the case, in my opinion, would be Order XVII, rule 2 which reads as follows :‑

"Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit."

The defendant in this case had already appeared but failed to appear on the adjourned date. For such a case procedure is laid in Order XVII, rule 2. The Court has discretion either to proceed under Order IX or pass such other orders as Court thinks fit. "If the defendant fails to appear at an adjourned hearing the Court may pass an ex parte order under Rule 2, Order XVII and Rule 6, Order IX and the defendant may E thereupon apply under Order IX, rule 13 to set aside the ex parte decree". In the circumstances of the present case when the evidence had not yet begun the case could not be decided on merits. The Court should have proceeded under Order IX‑and called upon the plaintiff to prove his case ex pane. By pronouncing the judgment forthwith without there being evidence on record, the defendant is deprived of the remedy and the plaintiff in matter of proof is placed in a better position than the defendant in ex pare decree.

Rule 10 of Order VIII also gives discretion to the Court either to pronounce judgment against the defendant or to make such orders in relation to the suit as it thinks fit. The question may arise: when the Court is to pronounce judgment under Rule 10 and when to make order in relation to the suit it deems fit The discretion in such cases must not be exercised in an arbitrary and capricious manner but on judicial principles keeping in view the facts and circumstances of each case. It was not proper, for the trial Court, when there was no evidence before it, in support of the claim of the plaintiff, to proceed, under the first part of Rule 10 of Order VIII, to pronounce judgment. The discretion would have been well exercised if the Court had proceeded under second part of Rule 10 which is less stringent in nature and does not deprive the defendant of the remedy.

Apart from that there was no justification, in the circum stances of the present case, either to require the defendant to file written statement or to burden him with costs on 24‑5‑67 the order, on the basis of which the Court pronounced judgment under the provisions of Order VIII, rule 10. 1 may refer here to an application that was submitted by the defendant on 25‑5‑67. It discloses certain facts which appear to be important for the decision of the case. It was alleged in that application that Mr. Maqbool Ahmad Qureshi was neither briefed nor appointed in this case. When the case on 24‑5‑67 was called the ‑plaintiff was present in the Court and was burdened with costs for failure to file written statement though he was not supplied with a copy of the plaint by that time. Verbal protest by the applicant on 24‑5‑67 about these facts were not accepted. The trial Judge ordered on that application that if the copy had not been delivered by that time it might be furnished to the plaintiff. There is a receipt on the reverse of this application showing the supply of the copy of the plaint to the defendant on the same date. Thus it would appear that the order dated 24‑5‑67 requiring the defendant to file written statement by 10.6‑67 was made by the Court without taking into consideration the fact that the copy of the plaint had not been supplied by that time to the defendant. There is nothing on the record to show that the summons were duly served upon the defendant before that date. Power‑of‑attorney placed on record shows that in fact the counsel who appeared on 1‑5‑67 was engaged in another case entitled Mangta v. Abdul Qadoos'. Defendant can be ordered to file a written statement under Order VIII, rule 1 only when he is furnished with a copy of the plaint. A defendant cannot possibly answer the claim against him if he is not supplied with a copy of the plaint. An order to file a written statement without first furnishing the defendant with a cops of the plaint would amount to a material irregularity and would defeat the ends of justice.

Rule 10 of order VIII would apply when the defendant is ordered to tile written statement within certain time and he fails to do so but before ordering the defendant to file the written statement, it is necessary to provide him with a copy of the plaint so that, he be in a position to file written statement:

As discussed above the facts of the present case reveal that the defendant was ordered to file a written statement on 24‑5‑67 before be was furnished with a copy of the plaint. Therefore, under the circumstances, the subsequent order dated 10‑6‑67 pronouncing judgment under Order VIII, rule 10 is such where G the Court has acted in exercise of its jurisdiction with material irregularity. Therefore, exercising the powers of revision I set aside the order made under the provisions of Order VIII. rule 10 and remand the case back to the trial Court with the direction that it may be re‑entered on its original number and after providing an opportunity to the defendant to file a written statement decide the case afresh. The costs shall follow the event.

A. E.

Revision accepted.

Case remanded.

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