Eapen Mathai vs Varkey Cheriyan and Another

Koshi, C.J.—Defendant 2 in O.S. No. 150 of 1121 on the file of the Alleppey District Court has preferred this appeal against an order refusing to accept his written statement after vacating an order declaring him ex parte. On 28-1-1122 he entered appearance in the suit and asked for time for filing his written statement. Thereafter he took several adjournments for the said purpose until at last the Court refused further adjournment and declared him ex parte. This order was passed on 31-10-1122. Very nearly two years afterwards on 28-6-1124 he filed his written statement together with an application to receive the same. The suit was still pending and even now it remains undisposed of The reason for his failure to file the written statement earlier has been attributed to his illness during the relevant period. The court however rejected his prayer and the appeal is from that order.

The first point that we desire to mention is that no appeal lies from an order refusing an application under Order 9, Rule 7, Code of Civil Procedure. An appeal is provided against an order rejecting an application under Order 9, Rule13 but out the present order is not one such. No decree has yet been passed. However we do not seek to dispose of the matter on this preliminary ground. The Respondent did not raise this objection. Regard being had to a long line of cases bearing on the law applicable to applications like that Defendant 2 filed on 28-6-1124, we consider this to be a proper case where in the exercise of our revisional jurisdiction we should set aside the lower Court''s order and direct that court to accept the written statement tendered by the Appellant and proceed with the trial of the suit.

The Appellant produced in this Court a medical certificate along with his appeal to account for the delay in filing the written statement. On 28-6-1124 when the Appellant filed his written. statement in the suit, the suit had not passed the stage of first hearing and, in consonance with justice for whose administration alone Courts exist, the lower Court should have accepted the written statement and proceeded with the trial of the suit. Where a Defendant wants to be heard only from the stage at which the case stands at the time of his appearance "the good cause" condition in Order 9 Rule 7 has no application is well established on authorities. A recent Division Bench ruling of this Court reported in ''Kothir Abdulla v. Standard Tile Works Co.'' 6 DLR (TC) 467 reiterated this position. That case refers to the decisions in Gokarakonda Venkatasubbiah Vs. Daliparthi Lakshminarasimham, and Pattanna Vs. Neeli Chetty Ramiah Chetty and Another, The decision of Varadachariar J. (as he then was) in Perumal Naicken Vs. Kondama Naicken and Another, is yet Anr. Madras decision bearing on the point.

The case in 18 Cochin 561 is a case almost on all fours with the present case. No doubt the number of adjournments the defaulting Defendant had taken in that case was not so large as that in this case but that has no bearing on the point of law. That case besides referring to Gokarakonda Venkatasubbiah Vs. Daliparthi Lakshminarasimham, refers to two Allahabad decisions both reported in 20 All. LJ 39 and the other at page 270 ''Mannu v. Tulsi'' 20 All LJ 39 and ''Bhagwat Prasad v. Mohd. Shibli'' 20 All LJ 270. The facts in 20 All LJ 270 were similar to the facts in the present case and in the Cochin case referred to above. The Nagpur High Court had occasion to construe Order 9 Rule 7 in a decision reported in AIR 1948 362 (Nagpur) and that case shows the approach different High Courts have from time to time made to applications similar to the one the learned Judge in the Court below had before him in this case.

In the light of these decisions the lower court is directed to accept the written statement filed by the present Appellant and to proceed with the trial of the suit according to law. In the circumstances of the case we make no order for costs.