- (1.) BY the present notice of motion, the defendants are praying that the decree passed on 6th July, 1990 be set aside. The question which arises for consideration is : "whether a decree passed under Order VII, Rule 10 of the Code of Civil Procedure for want of written statement can be set aside by resorting to an application under Order IX, Rule 13 of the Code of Civil Procedure?"
(2.) THE relevant facts giving rise to the present notice of motion are as follows : The plaintiffs filed the present suit in May 1984 for recovery of Rs. 82, 592. 64 with interest from the defendants. On 26th June, 1985, directions were given in the suit, inter alia, directing the defendants to file their written statement within four weeks. As written statement was not filed within the period stipulated and even thereafter, the plaintiffs took out a notice of motion being Notice of Motion No. 2212 of 1988 praying for judgment for want of written statement in August 1988 and the same was served on the defendants in August 1988 itself. No affidavit-in-reply was filed by defendants. On 6th June, 1990, the same reached hearing and on application of the defendants made through their Counsel, this Court (Agarwal, J.) was pleased to adjourn the defendants to file their written statement after granting costs of Rs. 500/- to the plaintiffs as condition precedent to filing of written statement. From 25th June, 1990 onwards, the said notice of motion appeared on the daily board of Agarwal, J. , but reached hearing only on 6th July, 1990. Neither costs ordered to be paid as condition precedent were paid by the defendants nor written statement filed on 6th July, 1990. Defendants were represented by a Counsel on that day. This Court (Agarwal, J.) was pleased to pass the following order : "on the 6th June, 1990, the defendants were granted time to file written statement till 25-6-90. This was by way of last opportunity. The adjournment was granted on condition of the defendants paying costs quantified at Rs. 500/- as condition precedent. Neither the written statement has been filed nor was the costs paid. In the circumstances, the notice of motion is made absolute in terms of prayer Clauses (a) and (b ). " hence, the present notice of motion. The main prayer thereof is- "that the ex parte decree and order dated 6th day of July 1990 passed by His Lordship Justice Agarwal in Suit No. 1976 of 1984 be set aside. " The affidavit-in-support is made by one Ketan M. Dave, a clerk working in the office of Messrs. Mulla and Mulla and Craigie, Blunt and Caroe. On behalf of the plaintiffs, an affidavit-in-reply is filed opposing the present notice of motion mainly on the ground that the present notice of motion was not maintainable. The defendants have not filed any rejoinder. Thus, the defendants have not filed any affidavit in rejoinder. Thus, the defendants have not filed any affidavit, whatsoever, in the present notice of motion. As far as the costs to be paid as condition precedent are concerned, the same were sent to the plaintiffs attorneys after the order dated 6th July, 1990 and the same were returned by the plaintiffs.
(3.) MR. D. D. Madon, the learned Counsel for the defendants, submitted that the notice of motion was maintainable as the decree sought to be set aside is an ex parte decree; that since the defendants office is at Kandla, Gujarat, though the draft written statement was ready, the sane could not be finalised and accordingly could not be tendered when the matter came up for hearing on 6th July, 1990 and that the clerk of the attorneys, being unaware of the order as to costs, did not inform his masters about the same and, thus, the same were not paid. In support of his contention, Mr. Madon relied on (N. Jayaraman v. M/s. Glaxo Laboratories India Ltd.) reported in A. I. R. 1981 Madras at page 258. On the other hand, Mr. Divekar, the learned Counsel for the plaintiffs, submitted that the notice of motion is not maintainable inasmuch as that the decree passed is under Order VIII, Rule 10 read with Order VIII, Rule 5 and in the presence of a Counsel representing defendants and, therefore, it was not an ex parte decree and cannot be set aside in the present proceeding; that the only remedy available to the defendants is by way of an appeal and that in any view of the matter the conduct of the defendants was such as to disentitle them to the relief sought. Mr. Divekar relied on the decision of Single Judge of this Court in (Nenomal Kushaldas Sindhi v. Gangadhar Pannalal Rai) reported in 1982 Mh. L. J. at page 188. More about the abovementioned decisions little later.;