Judgment :- 1. The short but interesting and informative question for consideration in this civil revision petition filed by the plaintiff is whether an appeal alone will lie or an application under 0.9 R.13 is also maintainable for getting a decree passed under 0.8 R.10, Code of Civil Procedure set aside and the suit restored to file. 2. The suit was filed by the revision petitioner for injunction against the respondents. There was an application for temporary injunction in which an order of interim injunction was issued and notice ordered. Defendants entered appearance and filed objection. They also filed an application for injunction against the plaintiff and produced several documents. Both the applications were disposed of on the merits after elaborate arguments by a detailed order on 7-6-1986. The agreements produced by the plaintiff were challenged as forged documents. Thereafter the case was adjourned for written statement to 30-10-1986. On that day written statement was not filed. Therefore the suit was decreed under 0.8 R.10, without declaring the defendants ex parte, on the sole ground that written statement was not filed. Plaintiff was not examined and no affidavit was also filed by him to prove his contentions. No document was marked. Neither the contentions nor evidence were referred to in the judgment. Suit was simply decreed for the reason that no written statement was filed without even stating what the plaint claim is. Defendants filed an application under 0.9 R.13 the next day itself along with written statement. They said that the written statement signed by the defendants and their advocate was entrusted to a brother Advocate for being filed in court but somehow he omitted to file it. The Munisiff allowed the application and the revision is against that order. 3. I feel that the plaintiff ought not have come in revision against the order. His attempt seems to be to cling on to the ex parte decree, probably being apprehensive of the fact that after contest on the merits he may not be able to succeed. Otherwise in fairness he ought to have submitted to the order and faced a contest, thereby affording the defendants, who keenly fought the injunction application against him, an opportunity to have the case decided on the merits. This is evidently a case in which the court itself should not have resorted to 0.8 R.10. 4. Otherwise in fairness he ought to have submitted to the order and faced a contest, thereby affording the defendants, who keenly fought the injunction application against him, an opportunity to have the case decided on the merits. This is evidently a case in which the court itself should not have resorted to 0.8 R.10. 4. The first contention was that the decree is an appealable one and hence an application under 0.9 R.13 will not lie. That is not a sound proposition of law. These are not remedies which are inconsistent or mutually exclusive. The mere fact that there is right of appeal against the ex parte decree is no reason to hold that an application under 0.9 R.13 is not maintainable. 0.8 R.10 as it stood before the amendment of 1976 did not contain a provision that on pronouncement of the judgment a decree shall be drawn up. The adjudication was therefore taken out of the definition of decree in S.2(2) of the Code and it was made appealable as an order under O.43 R.1(b). After the amendment of 1976 when the provision for drawing up a decree was inserted in O.8 R.10, O.43 R.1(b) was deleted and the decree under O.8 R.10 became no longer appealable as an order under O.43 R.1(b). It became an appealable decree as held in C. D. ltoop v. Trichur Municipality (1984 KLJ 280). The contention is that for this reason it coated to be one against which an application under 0.9 R.13 is maintainable. That contention is on the basis of a misapprehension that remedy under 0.9 R.13 and that by way of appeal are mutually exclusive. In fact they are not. There is no bar in resorting to both the remedies simultaneously or any of them alone. Only thing is that when both remedies are attempted and one succeeds the other becomes infructuous since the object and effect of both is the same. Availability of the remedy by way of appeal is no bar to an application under 0.9 R.13 if such a remedy is also available to the party. For example when the defendant is set ex parte under 0.9 R.6 and an ex parte decree passed, though that decree is appealable, an application under 0.9 R.13 also will lie. The real question for consideration is only whether an application under 0.9 R.13 will lie. 5. For example when the defendant is set ex parte under 0.9 R.6 and an ex parte decree passed, though that decree is appealable, an application under 0.9 R.13 also will lie. The real question for consideration is only whether an application under 0.9 R.13 will lie. 5. The opening words of 0.9 R.13 are "in any case in which a decree is passed ex parte against a defendant". Therefore the real question for the applicability of the rule is whether the decree is ex parte or one on the merits whatever be the provision under which it was resorted to. If it is ex parte the remedy under 0.9 R.13 is there irrespective of the simultaneous or alternate remedy by way of appeal. Whether the decree is ex parte or one on the merits is a question of fact depending upon the facts of each case. A decree which is for all external appearance one on the merits may in fact only be an ex parte one. As held in Chart Vijayan v. Achuthan Vasu (1973 KLT 849) the courts owe a duty to weigh the merits of the case and consider whether there is a case for granting a decree even when there is no contest by non appearance of the defendants. Attention to pleadings and evidence even in cases where the defendants do not appear is not only a healthy trend but also a duty cast on the court to decide whether the plaintiff has a good case to be decreed. Even in cases where the defendant remains ex parte, decreeing the suit merely on that ground without looking into the pleadings and evidence may not be conducive to justice. Whether the claim is contested or not is not the real question. The question is whether the plaintiff presented a case entitling him to get a decree. For that purpose even incases where the defendants remain ex parte the court should insist at least on formal proof from the plaintiff as held in Kochuvelu v. Varkey (1968 KLT 462) and the judge is bound to look into pleadings and evidence. 6. Even in contested cases there could be ex parte decrees as provided in 0.17 R.2 and 3(b) on account of absence of parties and there could also be a decree on the merits as provided in 0.17 R.3(a). 6. Even in contested cases there could be ex parte decrees as provided in 0.17 R.2 and 3(b) on account of absence of parties and there could also be a decree on the merits as provided in 0.17 R.3(a). The decision on the merits in such cases is a matter of discretion of the court as laid down in Pokker Haji v. Muhammad Barami (1971 KLT 438). Whether in decreeing the suit the judge was conscious of that discretion to proceed either under R.2 or R.3 and decided to proceed under R.3 to decree the case on the merits is a matter to be seen from the judgment and other circumstances. In such cases also if the disposal is under R.2 a petition filed under 0.9 R.13 is well-nigh maintainable in spite of the fact that an appeal also will lie. In such cases even though the disposal in form purports to be one on merits, if it is found to be in substance one for default a petition under O.9 R.13 is maintainable as held in Varghese v. Kesavan (1960 KLT 648). Granting of such an application is proper and legal in such circumstances and for that purpose what the court has to look into is not the form of the judgment but its substance. In such cases bar for an application under 0.9 R.13 is only if the decree is one on the merits under 0.17 R.3 in which case the remedy is only by way of appeal. As held in Moideenkutty v. Gopalan (1980 KLT 468) an application under 0.9 R.13 is not barred in such cases simply because disposal purports to be on the merits but actually is one for default. A disposal under 0.17 R.3 (b) is disposal under 0.17 R.2. If the court did not consider the contentions in the pleadings or the issues raised or the evidence adduced the disposal is not on the merits and Peelikunju v. Sreedharan (1985 KLT Case No. 87 S. N. page 59) is also authority for the position that in such cases a petition under 0.9 R.13 will lie. In all these cases the remedy by way of appeal is also there. The learned counsel for the revision petitioner misunderstood the legal position and thought that availability of the right of appeal will operate as a bar to an application under 0.9 R.13. In all these cases the remedy by way of appeal is also there. The learned counsel for the revision petitioner misunderstood the legal position and thought that availability of the right of appeal will operate as a bar to an application under 0.9 R.13. That is a fundamental mistake. 7. As 0.8 R.10 stood before the amendment of 1976 it was considered to apply only in cases where written statement is not filed under R.9 as ordered by court. But the amendment provided that it is applicable both to R.1 and 9. There cannot be any dispute that the discretion is with the court to pronounce the judgment against the defendant woo did not file the written statement even though it can pass such other orders also as it thinks fit. In this case the discretion was exercised to pronounce the judgment against the defendants. In such a situation the only question relevant for the applicability of 0.9 R.13 is whether the decree is ex parte or one on the merits. 8. Over and above 0.8 R.10 and 0.17 R.2, there can be instances under 0.9 where there are ex parte decrees and dismissal of the suit for default. As I have earlier stated the opening words of 0.9 R.13 are "in any case in which a decree is passed ex parte". These wordings are wide enough to cover all cases of ex parte decrees no matter for what reason such ex parte decree had been passed. What is required is only that the decree should be an ex parte one in contradistinction to one on toe merits. For that purpose it is not a condition precedent that the decree should be after declaring the defendant ex parte under R.6 of 0.9. For the applicability of 0.8 R.10 the defendant need not be set ex pane. The rule does not provide so. In this case though the defendants were not declared ex pane the decree was evidently one for default in not filing written statement without considering the claim on the merits. The plaint allegations or the evidence were not even looked into and not even an affidavit was tiled by the plaintiff. The court did not apply its mind at all and mechanically passed a decree under 0.8 R.10. The plaint allegations or the evidence were not even looked into and not even an affidavit was tiled by the plaintiff. The court did not apply its mind at all and mechanically passed a decree under 0.8 R.10. The judgment does not even conform to the requirements of S.2(9) of me Code which defined judgment as the statement given by the judge of the grounds of a decree or order. No grounds for allowing the claim are stated in the judgment. Therefore the decree in this case is even inferior than an ex parte decree. 9. The adjudication is one sided and the decision was rendered only for default. It is the substance of the court's action and not the label appended to it that counts. Even though 0.8 R.10 authorises the court to pronounce a judgment against the defaulting defendant who fails to submit the written statement, mere is nothing to indicate that the need to write a speaking and reasoned judgment is dispensed with. There cannot be any dispute that decree is one paused ex parte and not on the merits. Except that the decree should be ex parte there is no other restriction in 0.9 R.13 for its applicability. The wordings of 0.8 R.10 or the changes brought about in it by the amendment of 1976 do not give any indication that a decree passed thereunder cannot be ex parte. If it is ex parte, as it actually is in this case, the remedy by way of 0.9 R.13 is undoubtedly available. For the applicability of R.13 the decision need not necessarily be under O.9 itself. It can be under O.8 R.10 or O.17 R.2 also. (See N. Jayaraman v. Glaxo Laboratories India Ltd. (AIR 1981 Madras 258). The revision petition fails and it is hereby dismissed with costs.