JUDGMENT
Ramesam, J.
1. The suit out of which this revision petition arises was filed in the Small Causes Court, Madras, in April, 1924 against three defendants on a hundi. 2nd defendant is the maker of a hundi. It was drawn in favour of the 3rd defendant who endorsed it in favour of the plaintiff. The 1st defendant was impleaded on account of a varthamanam letter, Ex. B, executed by him when the plaintiff alleged that the hundi was presented at Rangoon and was dishonoured. The 1st defendant is sued on the ground that he had opened a shop in Madras and leave to sue was obtained against the others. Along with the suit an application for attachment before judgment was also filed against the 1st defendant and some goods belonging to him were attached. The 1st defendant appeared and got the goods released. The case was then posted to 24th July. On that day Mr. R. Srinivasa Aiyangar appearing for the plaintiff asked for time to state his defence. He also undertook to file a vakalat for the 2nd defendant. The Chief Judge before whom the case was posted passed the following order:
Adjourned, at defendants’ (1 and 2) vakil’s request, as his clients are unable to be present owing to the floods, to 27th August, 1924. Defendants 1 and 2 to file pleas, if any, on or before 5th August, 1924 with copy to plaintiff.
2. No written statement was filed on the 5th of August. it is said that the 1st defendant was unwell and on the 21st of August Mr. Srinivasa Aiyangar applied for extension of time for filing a written statement. He stated in it that the medical certificate has not reached him by mistake. This petition was rejected on the 22nd. On the 27th the Chief Judge was absent and the case came up before the 2nd Judge. On that day Mr. Srinivasa Aiyangar stated his pleas for the 1st defendant. They were noted by the 2nd Judge but afterwards it was pointed out to him that an application for extension of time has previously been rejected by the Chief Judge. So he struck off the noted entries and adjourned the case to 3rd September, directing the 1st defendant to pay the day costs. When the case came up before the Chief Judge again on 3rd September, the 1st defendant was again ready to state his pleas but he was not allowed to do so and on the ground that the 1st defendant disobeyed the orders of the Court requiring a written statement to be filed a decree was passed against him. After a futile attempt to prove the case against the 3rd defendant it was ultimately withdrawn against him.
3. There was an application for a new trial before the Full Bench. This was disposed of by a judgment dated the 15th December. The revision petition is against that order.
4. Two points have been argued by Mr. Srinivasa Aiyangar for the petitioners who are the 1st and 2nd defendants. The first point “argued is that the Small Cause Court has no jurisdiction to pass a decree under Order 8, Rule 5, which does not apply. This order enables a Court to pass a decree if the defendant does not file a written statement as required by the Court. The question therefore is whether there is an order by the Court requiring the 1st defendant to file a written statement. The only order we have got in this case has already been set forth by me above. In my opinion, the order “defendants 1 and 2 to file pleas, if any, on or before 5th August ” is not an order directing them to file a written statement by the 5th of August. The use of the words “if any” shows that they are to file a written statement only if they have any defence to make. It is true that it now turns out that they have a defence to make. But it was open to them to state that they had none. An order in that conditional form requiring them to file a written statement if they have any defence to make cannot be regarded as an unconditional order to file a written statement and in my opinion the order requiring a written statement for the disobedience of which a decree can be passed under Order 8, Rule 5 must be an unconditional order requiring a written statement to be filed in my opinion, the order passed on the 24th July cannot be regarded as such an unconditional order. Mr. Sesha Aiyangar for the respondent contends that it must be regarded as an unconditional order requiring a written statement because under another provision of the Provincial Small Cause Rules unless the Court requires a written statement one cannot be received. This is true; but an order cannot be construed with reference to another provision of the law. The plain meaning of the order is an order permitting them to file a written statement if they choose to have any defence. To file pleas certainly involves filing written pleas; but an order permitting them to file written pleas, whether it is a proper order or not under the other provision, cannot be regarded as an absolute order requiring the filing of the written statement. It is unnecessary to consider whether it is a proper order under the other provision. In my opinion the passing of a decree against the 1st defendant under Order 8, Rule 5 is not justified and as there is a material irregularity we are justified in interfering in revision.
5. The second point argued is that the Chief Judge erred in not permitting the 1st defendant to state his pleas. If this is the only point in revision I would not certainly interfere in this case but seeing that the case will have now to go before ¦ the Chief Judge of the Small Cause Court I think I ought to consider this point also. The adjournment from the 24th July was due to floods and it is said that the 1st defendant was ill in August; it may be this was not proved to the satisfaction of the Court. It is said that the vakil must have known the pleas of the 1st defendant because he appeared in connection with the application for attachment before the judgment in April; but it is noteworthy that on that occasion Mr. Srinivasa Aiyangar applied for a search of the plaintiffs’ documents and he noted on the search petition “Seen only the hundi, Ex. A. No varthamanam”. The varthamanam shows that it was filed in Court on the 16th of April. Why it was not shown to Mr. Srinivasa Aiyangar on the 25th of April is not very clear. There may be some matter for enquiry here. Anyhow, he applied for a certified copy on the 29th of April and got it only on 2nd August. He was ready to file his pleas on the 21st of August but he thought he should file a verified written statement. Assuming that there was some negligence on the part of the 1st defendant, which is not very clear, still it is desirable that parties should be allowed to state their pleas whenever possible provided no further delay is caused by such indulgence. Mr. Srinivasa Aiyangar was ready to state and did state his pleas on the 27th of August and on the 3rd September. Under such circumstances I do not think the ends of justice are served by shutting him up and preventing him from stating his defence. In my opinion, now the case is going back on the other ground, I think it will be convenient to permit the 1st and 2nd defendants to file their written statements or state their pleas before the case is posted for trial. The case will accordingly be remanded for fresh trial and disposed of according to law. Costs to abide the result.
Kumaraswami Sastri, J.
6. I entirely agree.
