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2003 DIGILAW 416 (CAL)

PANCHANAN NATH AND PANCHU NATH v. LAXMI RANI BASU

2003-08-14

GIRISH CHANDRA GUPTA

body2003
GIRISH CHANDRA GUPTA, J. ( 1 ) THIS revisional application under Section 115 of the Code of Civil procedure is directed against an appellate order dated 18. 7. 1995 by which the appellate Court afirmed a judgment and order dated 13. 6. 1994 passed by the Trial Court holding that an application under Order 9. Rule 13 of the code of Civil Procedure is not maintainable where a suit has been decreed under Order 8, Rule 10 of the Code of Civil Procedure. The facts of the case would best be described by quoting two relevant paragraphs from the judgment of the appellate Court which read as follows :"it is an admitted position that the learned Court below granted several adjournments to defendant to file written statement and lastly he rejected the prayer of the defendant and accordingly fixed for ex- parte hearing i. e. , on 8. 9. 1993 the defendant/petitioner filed the same adjournment petition with the prayer for setting aside the ex parte hearing of the suit but as the said-petition was not moved the suit was heard ex parte. The learned Munsif after hearing the parties came to the conclusion that when the suit was heard ex parte under Order 8, rule 10 of the Code of Civil Procedure the petition under Order 9, rule 13 of the Code of Civil Procedure is not maintainable. " ( 2 ) THE question of law which falls for determination therefore can be formulated as follows :"is an application under Order 9, Rule 13 of the Code of Civil procedure maintainable where a suit has been decreed under Order 8, Rule 10 of the Code of Civil Procedure ?" ( 3 ) FOR a just decision of the controversy it would be apposite to notice the provisions of Order 8, Rule 10 of the Code of Civil Procedure which provide as follows :"10. Procedure when party fails to present written statement called for by Court.-Where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up. " ( 4 ) THIS is a provision which enables the Trial Court to pronounce judgment where the defendant fails to file a written statement within the time originally granted or within the extended time. This provision also authorises the Court to decree a counter claim in case the plaintiff fails to file a written statement in reply to a claim made in a defence set up by the defendant by way of set off or counter claim. Judgment can also be pronounced under this provision against the defaulting party i. e. , either the plaintiff or the defendant who may have been directed by the Court to file an additional written statement and has failed to do so. ( 5 ) IT would at this stage be convenient to notice sub-rule (2) of Rule 5 of Order 8 of the Code of Civil Procedure which enables the Trial Court to pronounce a judgment based on the theory of non-traverse where the defendant failed to file a written statement:"where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved. " ( 6 ) OTHER similar enabling provisions are to be found in Order 10, rule 4 and Order 16, Rule 20 of the Code of Civil Procedure which may also be noticed in this regard :"o. 10,r. 4. Consequence of refusal or inability of pleader to answer.-{1) Where the plea'der of any party who appears by a pleader or any such person accompanying a pleader as is referred to in Rule 2, refuses or is unable to answer any material question relating to the suit which the Court is of opinion that the party whom he represents ought to answer, and is likely to be able to answer if interrogated in person, the Court may postpone the hearing of the suit to a day not latter than seven days from the date of first hearing and direct that such party shall appear in person on such day. (2) If such party fails without lawful excuse to appear in person on the day so appointed, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit. O. 16,r. 20 Consequence of refusal of party to give evidence when called on by Court -Where any party to a suit present in Court refuse, without lawful excuse, when required by the court, to give evidence or to produce any document then and there in his possession or power, the Court may pronounce judgment against him or make such order in relation to the suit as it thinks fit. " ( 7 ) THE aforesaid provisions call for a comparison with the provisions contained in Order 9 which is intituled "appearance of parties and consequence of non-appearance""o. 9, R. 6. Procedure when only plaintiff appears.- (1) where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then- (a) When summons duly served-!f it is proved that the summons was duly served, the Court may make an order that the suit be head ex parte, (b) When summons not duly served-lf it is not proved that the summons duly served, the Court shall direct a second summons to be issued and served on the defendant; (c) When summons served but not in due time-lf it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to a future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant. (2) Where it is owing to the plaintiffs default that the summons was not duly served or was not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the postponement. "o. 9. R. 8. Procedure where defendant only appears.-Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof. "o. 9. R. 8. Procedure where defendant only appears.-Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof. in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder. " ( 8 ) EACH of the aforesaid provisions authorises the Court to dispose of the suit one way or the other in case of omission, on the part of either of the parties to the suit, to do what Court or the procedural law requires of him to be done. But the Court is not obliged to do that. The Court can instead grant further time or adjourn the matter. ( 9 ) ORDER 9, Rule 9 of the Code of Civil Procedure provides for restoration of the suit which is worded as follows : '"9, Decree against plaintiff by default bars fresh suit.- (1) where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. (2) No order shall be made under this rule unless notice of the application has been served on the opposite party. " ( 10 ) ORDER 9, Rule 13 of the Code of Civil Procedure provides for setting aside an ex parte decree and is worded as follows :"setting aside decree ex parte 13. (2) No order shall be made under this rule unless notice of the application has been served on the opposite party. " ( 10 ) ORDER 9, Rule 13 of the Code of Civil Procedure provides for setting aside an ex parte decree and is worded as follows :"setting aside decree ex parte 13. Setting aside decree ex parte against defendants.-In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside, and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit: provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also : provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim. Explanation.-Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside the ex parte decree. " ( 11 ) LET us now first consider the argument against the applicability of Order 9, Rule 13 for setting aside a decree passed under Order 8, Rule 10 of the Code of Civil Procedure. The plaintiff/opposite party did not appear This Court therefore did not have the opportunity of hearing the submissions of the plaintiff. " ( 11 ) LET us now first consider the argument against the applicability of Order 9, Rule 13 for setting aside a decree passed under Order 8, Rule 10 of the Code of Civil Procedure. The plaintiff/opposite party did not appear This Court therefore did not have the opportunity of hearing the submissions of the plaintiff. From the judgment of the learned appellate court it appears that a judgment reported in AIR 1991 Patna 60 and a judgment reported in AIR 1988 Delhi 55 were taken into consideration for the purpose of upholding the views of the Trial Court that an application under Order 9, Rule 13 cannot be maintained where a suit has been decreed under Order 8, Rule 10 of the Code of Civil Procedure. ( 12 ) IN the case of Safya Narayan Sah v. Brij Gopal Mundra, reported in AIR 1991 Patna 60 a learned Single Judge advanced the following reasoning :"the question of passing ex parte decree arises in the circumstances enumerated in Order IX of the Code. When the summonses or notices are served upon the parties to appear but they do not appear then as required by Order IX, Rule 6, where the plaintiff appears and defendant does not appear when the suit is called on for hearing, the Court may make an order that the suit be heard ex-parte, but when the notices have been served and defendants have appeared then they are required to file a written statement as required by Order VII of the Code. Order VIII, Rule 10 of the Code provides that where any party from whom a written statement is'required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment, a decree shall be drawn up. This provision has been inserted by 1976 Amendment of the Code of civil Procedure. This provision has been inserted by 1976 Amendment of the Code of civil Procedure. It was experienced that the defendants successfully delayed the disposal of case for years without filing a written statement, therefore, this amendment was introduced so that the courts would straightway proceed for pronouncing the judgment in the event of failure of the defendants to file the written statement even after several opportunities given to them. It is, therefore, amply clear that, as in the present case, notices had already been served upon the defendant who had also appeared there was no need to fix any date for ex parte hearing and the Court could proceed under order Vlli, Rule 10 of the Code of Civil Procedure and pronounce the judgment followed by a decree. The learned Trial Court was fully justified in doing that and that cannot be called to be an ex parte decree. The application filed on behalf of the defendant under order IX, Rule 13 was, therefore, not maintainable as the decree passed in the case was not an ex-parte decree within the meaning of Order IX. " ( 13 ) IT would appear that the reason which found favour with the Patna high Court for holding that the provision of Order 9, Rule 13 were not applicable where a suit was decreed under Order 8, Rule 10 was that by the amendment of 1976 the legislature intended to put an end to the dilatory tactics adopted by the defendants in filing written statement and authorised the Court to pass a decree without having to go through the procedure laid down under Order 9, Rule 6. The reasoning may be to some extent correct but the points, in my view, over looked are as follows : (i) Prior to the 1976 Amendment the provisions of Order 8, rule 10 stood as follows :"10. Procedure when party fails to present written statement called for by Court. Where any party from whom a written statement is so required fails to present the same within the time fixed by the Court, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit. Procedure when party fails to present written statement called for by Court. Where any party from whom a written statement is so required fails to present the same within the time fixed by the Court, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit. "it would appear even under the unamended provision the Trial court was authorised to pronounce a judgment in case failure on the part of the defendant to file a written statement within the time fixed by the Court. It would also appear that even in the unamended provision a suit could be dismissed in the event of failure on the part of the plaintiff to file a written statement under Order 8, Rule 9. Therefore, there is no reason to think that the power to dispose of the suit one way or the other was not there in the Court prior to the amendment of 1976. (ii) Prior to the Amendment of 1976 an order passed under order 8, Rule 10 of the Code of Civil Procedure was an appealable order under Order 43 Rule 1 (b) of the Code of Civil Procedure which provided as follows : "1. Appeals from orders.-An appeal shall lie from the following orders under the provisions of Section 104, namely (a ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ,. . . (b) an order under Rule 10 of Order VIII pronouncing judgment against a party. " this has since been delated. (iii) Rule 13 of Order 9 starts with the words "in any case in which a decree is passed ex parte against a defendant. . . . . . . . . . . . . . . . . . . . " it does not appear from Rule 13 of Order 9 that it covers only the cases arising out of Order 9 nor does it appear that it would not cover an ex parte decree passed under any other provision contained in the Code of Civil Procedure. These are the provisions which, in my view, were not considered by the Patna High Court. These are the provisions which, in my view, were not considered by the Patna High Court. ( 14 ) THE next judgment relied upon by the appellate Court is the judgment in the case of The Traders' Bank Ltd. v. Avtar Singh, reported in air 1988 Delhi 55. The reasons advanced by the Delhi High Court for holding that Rule 13 of Order 9 shall not apply to a decree passed under order 8, Rule 10 are as follows :"an ex parte decree is one which is passed against a defendant who has not been able to place his case before the Court due to non-appearance either because he was not served with summons or because he could not appear before the Court due to sufficient cause. A decree which is passed by the Court under Order 8 of the code against the defendant who appears but fails or neglects to file his written statement within the time granted by the Court cannot be said to be an ex parte decree and cannot be set aside on an application moved under Rule 13 of Order 9 of the Code of Civil procedure. In my view the decree in the present case is not an ex parte decree and the present application moved by the defendant for getting the same set aside is not maintainable. " ( 15 ) IT would appear that the view taken by the Delhi High Court is that a decree passed consequent to failure on the part of the defendant to put in his written statement is not an ex parte decree. ( 16 ) THE question arises, what is an ex parte decree? Wallace, J. in air 1925 Madras 1274 propounded the view that 'ex parte' merely means in the absence of the other party. ( 16 ) THE question arises, what is an ex parte decree? Wallace, J. in air 1925 Madras 1274 propounded the view that 'ex parte' merely means in the absence of the other party. The Supreme Court in the case of sangram Singh v. Election Tribunal, reported in AIR 1955 SC 425 approved the view expressed by Wallace, J. There is therefore no difficulty in saying that where a decree has been passed against the defendant in his absence on account of his failure of file his written statement, within the time originally granted or within the extended time, under Order 8, Rule 10 of the Code of Civil Procedure would still be an ex-parte decree If it is an ex- parte decree, there is no reason why it should not come within the ambit of rule 13 of Order 9 which provides for setting aside an ex-parte decree "in any case in which a decree is passed ex-parte against the defendant. . . . . . . . . . . . . " Would the clause "in any case" not embrace in its fold a case where a decree is passed in the absence of a defendant on account of his failure to file a written statement ? The answer is irresistibly in the affirmative. ( 17 ) THE question still remains as to what would happen where the defendant is present and is willing to participate in the proceeding but no written statement has been filed ? The other possibility that the defendant is present but is not willing or is unable to participate in the proceeding is in my view the same as absence of the defendant because an ineffectual presence is not materially different from absence. Therefore, the only possibility which needs to be considered is that the defendant is present and is willing to participate in the proceeding but there is no written statement on his behalf. This question indirectly fell for consideration of the Apex Court in the case of Module v. Kamakshy, reported in AIR 1989 sc 162 wherein the question for consideration was the extent of right of the tenant under the West Bengal Premises Tenancy Act, 1956 whose defence had been struck out. Their Lordships held that the tenant could still cross-examine the witnesses of the plaintiff and make arguments. Their Lordships held that the tenant could still cross-examine the witnesses of the plaintiff and make arguments. The insistence of the plaintiff that he was entitled to a decree straightway as the one under Order 8, Rule 10 of the Code of Civil Procedure was answered by Their Lordships as follows :"an objection to our above conclusion has been raised on the basis of the provisions of Order VIII of the Code of Civil Procedure- rules 1, 5 and 10 of this Order have been recently amended by the amendment Act of 1976. We find nothing in these rules which will support the contention urged on behalf of the respondents. Rule 1 merely requires that the defendant should present a written statement of his defence within the time permitted by the Court. Under Rule 5 (2), where the defendant has not filed a pleading it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint except against a person under disability but the Court may in its discretion require any such fact to be proved. Again under Rule 10 when any party from whom a written statement is required fails to present the same within the time permitted or fixed by the Court, the Court shall pronounce judgment against him or make such order in relation to the suit as it thinks fit It will be seen that these rules are only permissive in nature. They enable the court in an appropriate case to pronounce a decree straightway on the basis of the plaint and the averments contained therein. Though the present language of Rule 10 says that the Court 'shall' pronounce judgment against him, it is obvious from the language of the rule that there is still an option with the Court either to pronounce judgment on the basis of the plaint against the defendant or to make such other appropriate order as the Court may think fit. Therefore, there is nothing in these rules, which makes it mandatory for the Court to pass a decree in favour of the plaintiff straightway because a written statement has not been filed. Reference was made before us to sub-rule (1) of Rule 5. Therefore, there is nothing in these rules, which makes it mandatory for the Court to pass a decree in favour of the plaintiff straightway because a written statement has not been filed. Reference was made before us to sub-rule (1) of Rule 5. This sub-rule, however, has application only in a case where a pleading is filed but does not contain a specific or implicit denial of the averments contained in the plaint or other document to which it is a reply. Rule 5 (1) cannot be made use of to sustain the contention that where there is no written statement the court is bound to accept the statements contained in the plaint and pass a decree straightway. These provisions of the Code of Civil procedure, far from supporting the contentions of the plaintiff that a decree on the basis of the plaint should follow a failure to file the written statement, rather indicate a contrary position, namely, that even in such cases, it is a matter for the Court to exercise a discretion as to the manner in which the further proceedings should take place. We, therefore, do not think that the terms of Order VIII in any way conflict with the conclusion reached by us. For the above reasons, we agree with the view of Ramendra mohan Datta, ACJ, that even in a case where the defence against delivery of possession of a tenant is struck off under Section 17 (4) of the Act, the defendant subject to the exercise of an appropriate discretion by the Court on the facts of a particular case, would generally be entitled : (a) to cross-examine the plaintiff's witnesses, and (b) to address argument on the basis of the plaintiff's case. We would like to make it clear that the defendant would not be entitled to lead any evidence of his own nor can his cross- examination be permitted to travel beyond the very limited objective of pointing out the falsity or weaknesses of the plaintiff's case. In no circumstances should the cross-examination be permitted to travel beyond this legitimate scope and to convert itself virtually into a presentation of the defendant's case either directly or in the form of suggestions put to the plaintiff's witnesses. In no circumstances should the cross-examination be permitted to travel beyond this legitimate scope and to convert itself virtually into a presentation of the defendant's case either directly or in the form of suggestions put to the plaintiff's witnesses. " ( 18 ) THERE is now very little or nothing left for me state except that even under Order 8, Rule 10 the defendant may be permitted to cross- examine the witnesses of the plaintiff and to make arguments. Once he does this, the decree to be passed shall not be an ex-parte decree nor would the provisions under Order 9 be applicable. Therefore, it is only in this kind of cases that it can be said that Order 9, Rule 13 does not apply. ( 19 ) FOR the reasons indicated hereinabove I am unable to follow the views expressed by the Patna High Court and the Delhi High Court adverted hereinabove. ( 20 ) REFERENCE can now be made to the case of Prakash Chander v. Smt. Janaki Manichanda, reported in AIR 1987 SC 42 . In that case what had happened was that the suit was fixed for evidence to be led by the defendant. The defendant did not appear nor was any witness on his behalf present. The Trial Court accordingly directed that the evidence of the defendant be treated as closed and fixed the suit for arguments. Even on the day fixed for argument the defendant did not appear. After arguments of the plaintiff the suit was fixed for judgment. Even on the date of judgment nobody appeared on behalf of the defendant. The suit was aocordinly decreed. The question arose whether this was an ex parte decree and whether an application under Order 9, Rule 13 of the Code of Civil procedure could be maintained. The question was answered by the Apex court in the affirmative. Even on the date of judgment nobody appeared on behalf of the defendant. The suit was aocordinly decreed. The question arose whether this was an ex parte decree and whether an application under Order 9, Rule 13 of the Code of Civil procedure could be maintained. The question was answered by the Apex court in the affirmative. It would be apposite to notice the reasoning given by the Apex Court which is as follows :"in some decisions, the High Courts have gone to the extent of saying that even if the trial Court disposes of the matter as if it was disposing it on merits under Order 17, Rule 3 still if the party against whom the decision was pronounced was absent it could not be treated to be a disposal in accordance with Order 17, Rule 3 and provisions of Order 9 wilt be available to such a party either for restoration or for setting aside an ex parte decree. Learned counsel placed before us a number of decisions of various High Courts on this aspect of the matter. But in our opinion in view of the amendment to these two rules which have been made by 1976 amendment of the Civil P. C. it is not disputed that to the facts of this case. Civil pc. as amended with be applicable and therefore it is not necessary for us to (go) into that question. Order 17, Rule 2 and Rule 3 as they now stand read : order 17, Rule 2 : Procedure if parties fail to appear on day fixed : 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. Ex-planation-Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion, proceed with the case as if such party were present. Order 17, Rule 3 : Court may proceed notwithstanding either party fails to produce evidence etc. Order 17, Rule 3 : Court may proceed notwithstanding either party fails to produce evidence etc. Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstandin. Such default (a) if the parties are present, proceed to decide the suit forthwith, or (b) if the parties are, or any of them is absent, proceed under rule 2. "it is clear that in cases where a party is absent only course is as mentioned in Order 17 (3) (b) to proceed under Rule 2. It is therefore clear that in absence of the defendant, the Court had no option but to proceed under Rule 2. Similarly, the language of Rule 2 as now stands also clearly lays down that if any one of the parties fails to appear, the Court has to proceed to dispose of the suit in one of the modes directed under Order 9. The explanation to Rule 2 gives a discretion to the Court to proceed under Rule 3 even if a party is absent but that discretion is limited only in cases where a party which is absent has led some evidence or has examined substantial part of their evidence. It is therefore clear that if on the date fixed, one of the parties remain absent and for that party no evidence has been examined up to that date the Court has no option but to proceed to dispose of the matter in accordance with Order 17, Rule 2 in any one of the modes prescribed under Order 9, Civil P. C. It is therefore clear that after this amendment in Order 17, Rules 2 and 3, Civil p. C. there remains no doubt and therefore there is no possibility of any controversy. In this view of the matter it is clear that when in the present case on 30. 10. 1985 when the case was called nobody was present for the defendant. It is also clear that till that date the plaintiff's evidence has been recorded but no evidence for defendant was recorded. The defendant was only to begin on this date or an earlier date when the case was adjourned. 10. 1985 when the case was called nobody was present for the defendant. It is also clear that till that date the plaintiff's evidence has been recorded but no evidence for defendant was recorded. The defendant was only to begin on this date or an earlier date when the case was adjourned. It is, therefore, clear that up to the date i. e. 30. 10. 1985 when the trial Court closed the case of defendant there was no evidence on record on behalf, of the defendant. In this view of the matter therefore the explanation Order 17, Rule 2 was not applicable at all. Apparently, when the defendant was absent Order 17, Rule 2 only permitted the Court to proceed to dispose of the matter in any one of the modes provided under order 9. it is also clear that Order 17, Rule 3 as it stands was not applicable to the facts of this case as admittedly on the date when the evidence of defendant was closed nobody appeared for the defendant. In this view of the matter it could not be disputed that the court when proceeded to dispose of the suit on merits had committed an error. Unfortunately, even on the review application, the learned trial Court went on in the controversy about Order 17, Rules 2 and 3, which existed before the amendment and rejected the review application and on appeal the High Court also unfortunately dismissed the appeal in limine by one word. The appeal is therefore allowed with costs. Unfortunately, even on the review application, the learned trial Court went on in the controversy about Order 17, Rules 2 and 3, which existed before the amendment and rejected the review application and on appeal the High Court also unfortunately dismissed the appeal in limine by one word. The appeal is therefore allowed with costs. The order passed by the High Court and also the trial Court rejecting the application of the appellant under Order 9, Rule 13 is set aside and it is directed that the learned trial Court will proceed to hear and dispose of the application under Order 9, Rule 13 filed by the appellant in accordance with law," ( 21 ) IT would appear from the aforesaid discussions of law made by the Apex Court that whenever a party fails to appear the Court may proceed to dispose of the suit in one of the modes directed by Order 9 and when the Court does so, applicability of Rule 13 for setting aside an ex-parte decree or the applicability of Rule 9 for setting aside an order of dismissal of suit for default cannot be ruled out ( 22 ) THEREFORE, the view expressed both by the Trial Court and the appellate Court is in my view erroneous and has to be set aside. I may only point out that the view taken by me is also the view expressed by a division Bench of the Kerala High Court in the case of M, M. Peter v. Surendranathan, reported in AIR 1988 Kerala 161 and by the Karnataka high Court in the case of M/s. Kuvarp Industries, Bangalore v. State Bank of Mysore, reported in AIR 1985 Karnataka 77 and the Andhra Pradesh high Court in the case of Innovation Apartments Flat Owners Association, secundrabad v. M/s. Innovation Associates, Secundrabad. reported in AIR 1991 AP 69 . For the reasons aforesaid the petition succeeds. The orders passed by the Trial Court and the appellate Court are set aside. The Trial Court is directed to hear out the application under Order 9, Rule 13 of the Code of civil Procedure on merits in the light of this judgment. There will be no order as to costs.