Judgment :- 1. This appeal is focussed at the instance of the defendants as against the judgment and decree dated 03.12.2008 passed by the learned Additional District Judge, Fast Track Court No.II, Salem in I.A.No.823 of 2008 in O.S.No.136 of 2007. 2. The long and short of the germane facts, in a few broad strokes, for the disposal of this appeal can be encapsulated thus: (i) The respondent/plaintiff herein filed the suit informa pauperis seeking the following reliefs: a) To permit him to sue informa pauperis b) Decree the suit by directing respondent/defendant to pay a sum of Rs.10,19,375/-to the petitioner and c) Direct the respondent/defendant to pay interest by way of damages at 18% p.a for the suit claim from the date of suit till the date of payment. d) Direct the respondent/defendant to pay the court fee payable on the plaint and award cost of suit to plaintiff. (ii) The appellants herein, who happened to be the defendants therein filed necessary counter and contested the pauper O.P. Whereupon, the POP was allowed and the matter was taken up as a suit. (iii) Opportunity was given to the defendants to file written statement, but that was not filed as contemplated under Order 8 Rule 1 of the Code of Civil Procedure. However, the court on 10.03.2008 setting the defendants exparte passed an exparte decree. (iv) Being aggrieved by and dissatisfied with the same, this Civil Miscellaneous Appeal has been filed on various grounds. 3. The learned counsel for the appellants/defendants would advance his arguments, which could tersely and briefly be set out thus: (a) The learned Advocate who appeared for the defendants was engaged in his son's marriage; wherefore, he could not file the written statement within the stipulated period. (b) No doubt, the Advocate himself who was responsible for such delay filed an affidavit; but the lower court looked askance at it and simply rejected the same. (c) The said exparte judgment was not one on merits. (d) Without considering the pro et contra, simply the suit was decreed exparte based on the documents marked on the side of the plaintiff. Accordingly, he would pray for setting aside the exparte judgment and decree of the lower court and for giving an opportunity to contest the matter. 4. (c) The said exparte judgment was not one on merits. (d) Without considering the pro et contra, simply the suit was decreed exparte based on the documents marked on the side of the plaintiff. Accordingly, he would pray for setting aside the exparte judgment and decree of the lower court and for giving an opportunity to contest the matter. 4. In a bid to torpedo and pulverise the arguments and pleas as put forth and set forth on the side of the appellants/defendants, the learned counsel for the respondent/plaintiff would advance his arguments, which could concisely and precisely be set out thus: (i) The trial court returned the application under Order 9 Rule 13 of the Code of Civil Procedure with the following endorsement: "The exparte decree was passed only non filing of WR. Therefore written statement to be produced along with the petition. Retd.time 4 weeks." (extracted as such) (ii) However, the defendants took the stand as under: "There is an earlier proceeding in respect of the same subject matter involved in the proceedings pending before the Calcutta High Court in Title Suit No.449/04 is admitted by both parties. After receipt of summon the present suit is filed as pauper and it was number as suit. So the defendant has filed an I.A.No.786/05 before this Hon'ble Court under Section 10 of CPC for staying the proceedings. Both the suit and the IA called together and by over sight without taking the I.A.786/05 this court has passed an exparte decree on 18.03.08. Since the stay petition in I.A. 786/05 has to be decided first, this defendant not in a position to file the written statement along with petition. Hence represented." (extracted as such) Subsequently the lower court numbered the application and after hearing both sides, dismissed the application correctly, warranting no interference in this appeal. 5. The points for consideration are as under: 1. Whether the Advocate concerned was justified in filing the affidavit along with the application under Order 9 Rule 13 of CPC without filing the affidavit of any one of his clients, viz., the defendants? 2. Whether the defendants were justified in filing the application under Order 9 Rule 13 of Code of Civil Procedure without adhering to the mandates as contained in the decision of the Hon'ble Apex Court reported in (2009) 3 SCC 513 [Mohammed Yusuf vs. Faij Mohammad and others) ? 6. 2. Whether the defendants were justified in filing the application under Order 9 Rule 13 of Code of Civil Procedure without adhering to the mandates as contained in the decision of the Hon'ble Apex Court reported in (2009) 3 SCC 513 [Mohammed Yusuf vs. Faij Mohammad and others) ? 6. Both these points are taken together for discussion as they are inter-linked and interwoven with each other. 7. Trite the proposition of law is that an affidavit has to be filed by the party concerned along with the application under Order 9 Rule 13 of the Code of Civil Procedure. The Advocate should not simply file the affidavit in lieu of the affidavit of his client concerned. His affidavit cannot partake his client's affidavit. 8. The learned counsel for the appellants/defendants placed reliance on the decision of the Delhi High Court reported in 106(2003) DLT 538 [S.S Builders vs. Smt.Sita Rani Ahuja] and certain excerpts from it would run thus: "12. In the application the counsel for the plaintiff has taken the blame for the default on himself. It is alleged that the dates of trial fixed on 5.8.1999 to 7.8.1999 were by mistake not transferred to the diary for the year 1999. Counsel, therefore, could not attend the hearing on 4.8.1999 and 5.8.1999. Moreover, it is alleged that Mr.T.C.Punjabi, plaintiff was an ordinary resident of Mumbai. ......................................................... This application is signed by the counsel and is supported by an affidavit of Mr.S.S.Jauhar, Advocate. The photocopy of the personal diary of the advocate for the relevant date has also been filed in support of the allegation that the entry from the previous orders diary were not carried forward in the new diary for 1999. 14. ............... The averments in the application clearly show that the counsel has taken the blame for the default in appearance on the crucial dates upon himself since he did not note down the dates of trial in his new diary of 1999. The copy of the relevant pages of the diary have been filed by him along with his own affidavit. 15. It is not necessary that the application under Order 9 Rule 9 CPC should be signed by the party. But the application should be supported by an affidavit of the person who has special knowledge of the facts alleged in the application. 19. 15. It is not necessary that the application under Order 9 Rule 9 CPC should be signed by the party. But the application should be supported by an affidavit of the person who has special knowledge of the facts alleged in the application. 19. In M.K.Prasad vs. P.Arumugam, the Supreme Court in paragraph 9 held as under: ............ Even though the appellant appears not to be as vigilant as he ought to have been, yet his conduct does not, on the whole, warrant to castigate him as an irresponsible litigant. He should have been more vigilant but on his failure to adopt such extra vigilance should not have been made a ground for ousting him from the litigation with respect to the property, concededly to be valuable. While deciding the application for setting aside the ex parte decree, the court should have kept in mind the judgment impugned, the extent of the property involved and the stake of the parties. We are of the opinion that the inconvenience caused to the respondent for the delay on account of the appellant being absent from the court in this case can be compensated by awarding appropriate and exemplary costs. In the interests of justice and under the peculiar circumstances of the case we set aside the order impugned and condone the delay in filing the application for setting aside ex parte decree. To avoid further delay, we have examined the merits of the main application and feel that sufficient grounds exist for setting aside the ex parte decree as well." He would advance his argument that in that particular case, the advocate concerned took up the blame on himself for the non-appearance as he did not note the date of hearing. 9. Unarguable as it is, more than 90 days' time was granted to the defendants to file the written statement but that was not utilised by them. Wherefore, the said decision of the Delhi High Court could be distinguished factually. 10. The back drop concerning the judgment of the Delhi High Court cited supra, was to the effect that there the Advocate concerned failed to take note of the hearing date and in that connection he produced his diary also and delineated the facts. But here, the matter is entirely different. 10. The back drop concerning the judgment of the Delhi High Court cited supra, was to the effect that there the Advocate concerned failed to take note of the hearing date and in that connection he produced his diary also and delineated the facts. But here, the matter is entirely different. 90 days' time was granted for the purpose of filing the written statement, but that was not filed, for which any one of the defendants should have explained and expounded the reasons. As such, the cited decision of the Delhi High Court is not applicable to the controversy involved in this case. 11. Wherefore, I am of the considered view that the lower court was justified in dismissing the application on the ground that neither of the defendants filed the affidavit in support of the said application explaining the reasons for non-filing of the written statement and also for remaining absent. Over and above that the lower court also insisted upon the filing of the written statement. But the defendants took up the specific stand that no written statement need be filed in view of the application under Section 10 of the Code of Civil Procedure, which they filed even when the case was at the pauper OP stage. 12. I would like to point out that what Section 10 of the Code of Civil Procedure contemplates is that only stay of the trial of the subsequent suit as the principle of res subjudice is got embodied in Section 10 of the Code of Civil Procedure. In such a case, that Section did not give carte blanche to the defendants to invoke Section 10 of the Code of the Civil Procedure so as not to file written statement despite lapse of 90 days' time. 13. The learned counsel for the appellants/defendants would cite the decision of the Hon'ble Apex Court reported in (2009) 3 SCC 513 [Mohammed Yusuf vs. Faij Mohammad and others). Certain excerpts from it would run thus: "5. On or about 31.01.2005, the appellant also filed an application before the learned Trial Judge for pronouncing judgment in terms of Order 8 Rule 10 of the Code of Civil Procedure, inter alia, on the premise that the respondent-defendants did not file any written statement. It is on the same date the defendants filed an application for filing written statement. On or about 31.01.2005, the appellant also filed an application before the learned Trial Judge for pronouncing judgment in terms of Order 8 Rule 10 of the Code of Civil Procedure, inter alia, on the premise that the respondent-defendants did not file any written statement. It is on the same date the defendants filed an application for filing written statement. No application for condonation of delay in filing the written statement was, however, filed. However, on 23.09.2005, as indicated hereinbefore by reason of an order dated 24.10.2005, while rejecting the said application of the respondents, the trial Judge allowed the plaintiff to examine his own witnesses in support of his case. 11. The matter was yet again considered by a three-Judge Bench of this Court in R.N. Jadi & Bros. v. Subhashchandra3. P.K. Balasubramanyan, J., who was also a member in Kailash1 in his concurring judgment stated the law thus: (R.N. Jadi case3, SCC p. 428, paras 14-15) “14. It is true that procedure is the handmaid of justice. The court must always be anxious to do justice and to prevent victories by way of technical knockouts. But how far that concept can be stretched in the context of the amendments brought to the Code and in the light of the mischief that was sought to be averted is a question that has to be seriously considered. I am conscious that I was a party to the decision in Kailash v. Nanhku1 which held that the provision was directory and not mandatory. But there could be situations where even a procedural provision could be construed as mandatory, no doubt retaining a power in the court, in an appropriate case, to exercise a jurisdiction to take out the rigour of that provision or to mitigate genuine hardship. It was in that context that in Kailash v. Nanhku1 it was stated that the extension of time beyond 90 days was not automatic and that the court, for reasons to be recorded, had to be satisfied that there was sufficient justification for departing from the time-limit fixed by the Code and the power inhering in the court in terms of Section 148 of the Code. Kailash1 is no authority for receiving written statements, after the expiry of the period permitted by law, in a routine manner. 15. Kailash1 is no authority for receiving written statements, after the expiry of the period permitted by law, in a routine manner. 15. A dispensation that makes Order 8 Rule 1 directory, leaving it to the courts to extend the time indiscriminately would tend to defeat the object sought to be achieved by the amendments to the Code. It is, therefore, necessary to emphasise that the grant of extension of time beyond 30 days is not automatic, that it should be exercised with caution and for adequate reasons and that an extension of time beyond 90 days of the service of summons must be granted only based on a clear satisfaction of the justification for granting such extension, the court being conscious of the fact that even the power of the court for extension inhering in Section 148 of the Code, has also been restricted by the legislature. It would be proper to encourage the belief in litigants that the imperative of Order 8 Rule 1 must be adhered to and that only in rare and exceptional cases, will the breach thereof will be condoned. Such an approach by courts alone can carry forward the legislative intent of avoiding delays or at least in curtailing the delays in the disposal of suits filed in courts. The lament of Lord Denning in Allen v. Sir Alfred McAlpine & Sons Ltd.4 that law's delays have been intolerable and last so long as to turn justice sour, is true of our legal system as well. Should that state of affairs continue for all times?” It is therefore clear as per the aforesaid decision two applications along with the application under Order 9 Rule 13 of the Code of Civil Procedure should have been filed, one to obtain leave to file the written statement and another to get the delay condoned in filing written statement; but that procedure was not at all resorted to by the defendants. As such, the matter is not so simple as the learned counsel for the appellants/defendants would try to project and portray before this court to the effect that opportunity could have been given by the lower court as enormous time did not get lapsed etc. 14. My mind is reminiscent and redolent of the following maxim – ubi jis ibi remedium. 14. My mind is reminiscent and redolent of the following maxim – ubi jis ibi remedium. The appellants who tries to assert his right should adhere to the punctilious of court procedures which are not meant for being flouted but to be adhered to in stricto sensu. There is no gainsaying or denying of the fact that rules of procedures are hand mades of justice and that it does not mean that it could be violated. In fact, pithily and precisely, I would like to describe the act of filing of Order 9 Rule 13 of CPC application in this matter by the defendants was in blithe disregard of the rules; violating every rule in the statute book such an application was filed; wherefore, the appellants/defendants cannot be heard to contend that the lower court should have blindly ignored all those defects and allowed the application. 15. Indubitably and unassailably, the facts are that this is a suit filed by the plaintiff for recovery of money and already one other suit was filed before the Calcutta Civil Court by the defendants herein. The learned counsel for the respondent/plaintiff herein would state that the said suit was dismissed for default by the Calcutta Civil Court; however the learned counsel for the appellants/defendants would submit that an application has been filed to get it restored. 16. These are all events, which emerged after the filing of the application here under Order 9 Rule 13 of Code of Civil Procedure by the defendants. 17. Taking into account the pro et contra and the over all circumstances, I am of the view that there was some misapprehension in the mind of the appellants/defendants in getting the matter processed before the lower court and subject to payment of cost, an opportunity should be given to the defendants to rectify the mistakes and get the matter processed as per law. 18. The whole kit and caboodle of facts as stood exemplified would connote and convey that there had been no supine or callous pocucurante attitude on the part of the defendants in prosecuting their defence in the case, but there were some communication gap between them and their Advocate who pulling no punches would candidly elaborate as to how he was responsible for such passing of the exparte decree. As such with that finding I would like to give one more opportunity to the appellants/defendants herein to file an affidavit of the defendants in support of the application under Order 9 Rule 13 of the Code of Civil Procedure and the appellants/defendants are also permitted to file necessary application to get leave to file written statement and also to get the delay condoned in filing the same, with such affidavit. Whereupon, the lower court shall take up the application under Order 9 Rule 13 of CPC and also the two other applications referred to supra and after giving due opportunity to file counter and hearing both sides; reasoned orders shall be passed. 19. I would like to mandate that the lower courts hereinafter shall see to it that whenever an application is filed under Order 9 Rule 13 of the Code of Civil Procedure by any defendant, they should necessarily insist upon the filing of two petitions one to obtain leave to file written statement and another application to get the delay condoned in filing the written statement, if already written statement had not been filed before he was set exparte. Unless those two applications are also filed along with Order 9 Rule 13 CPC petition, the said application filed under Order 9 Rule 13 of CPC should not be numbered and it should simply be returned or rejected depending upon the legal circumstances. 20. To put it in single syllable words, the act of non filing of such additional two applications referred to supra along with the application under Order 9 Rule 13 of CPC would be such as to render the defendant's step non-est in the eye of law. 21. Accordingly, the order dated 03.12.2008 passed by the learned Additional District Judge, Fast Track Court No.II, Salem in I.A.No.823 of 2008 in O.S.No.136 of 2007 shall stand set aside subject to payment of cost of Rs.5,000/-(Rupees five thousand only) by the appellants/defendants to the respondent/plaintiff and to filing of such affidavit of the defendant or defendants and the two more applications referred to supra within a period of three weeks from the date of receipt of a copy of this order and those three applications shall be dealt with as mandated supra and dispose of the same within a period of six weeks thereafter. 22. 22. The courts should without any exception or excuse, adhere in stricto sensu to Order 8 Rule 1 of CPC. Forget not, Order 8 Rule 10 of CPC keeping abreast of the dicta as found elucidated and enunciated in following the procedures of Hon'ble Apex Court: 1. (2005) 4 SCC 480 [Kailash vs. Nanhku] 2. (2007) 6 SCC 420 [R.N.Jadi and Bros. v. Subhashchandra] 3. (2007) 14 SCC 431 [Aditya Hotels (P) Ltd., vs. Bombay Swadeshi Stores Ltd. 4. (2007) 10 SCC 246 [M.Srinivasa Prasad vs. Comptroller and Auditor General of India] 5. (1968) 2 QB 229 [Allen v. Sir Alfred McAlpine and Sons Ltd.] 23. With the above direction, this civil miscellaneous petition is disposed of. No costs. Consequently, the connected miscellaneous petition is closed.