JUDGMENT
1. This application is directed against the order of the Subordinate Judge, dated the 9th May 1919, as being without jurisdiction. The order purports to dismiss Suit No. 31 of 1919 under Order IX, Rule 2, of the Civil Procedure Code, on account of the failure of the plaintiff to pay talbana for service of summons on the defendants and to file copies of the plaint. The applicant contends that they, being defendants, had already entered appearance on the said date and the proviso to the said Rule 2 bars the passing of the order under Rule 2 and that the only order that the Court could pass was one under Rule 8 of Order IX. The plaint was registered on the 12th March 1919 fixing the 9th May for settlement of issues. On 9th May, although the talbana was not paid for service of summons upon the defendants, and although no summons was issued, yet two of the defendants, the petitioners in this case, filed an application asking for time to file written statements. The plaintiff’ did not at all appear or take any steps to prosecute the suit.
2. It is contended on behalf of the opposite party that the mere filing of the application for time does not amount to an appearance by the defendant under Rule 8. This contention cannot find favour with us, inasmuch as the appearance for the defendant is sufficient whether it be by the filing of written statements or by a petition to take time to file written statements. The Court could, therefore, pass an order only under Rule 8 and had no jurisdiction to pass an order under Rule 2 as against the applicants. No doubt the defendant No. 3, the husband of the plaintiff, did not enter any appearance on the 9th of May and it was open to the Court to make an order under Rule 2 if any relief was claimed against that defendant.
3. It is next contended that this Court cannot interfere with the aforesaid order howsoever illegal or irregular, under Section 115 of the Civil Procedure Code, as no question of jurisdiction is involved. Both Rules 2 and 8 require certain conditions to be satisfied in order to vest jurisdiction in a Court to pass an order under those rules and if those conditions are not fulfilled, the Court has no jurisdiction to make an order under Rule 2 or Rule 8, as the case may be.
4. The first condition in order to give jurisdiction to make an order under Rule 2 is that contained in the proviso that the defendant should never have appeared at all. Thus if the defendant does appear in spite of non-service of summons, the Court’s jurisdiction to pass an order under Rule 2 ceases. If, on the other band, the defendant does appear and the Court does not make an order under Rule 8, the Court then refuses to exercise the jurisdiction vested in it by Order IX, Rule 8. It was held in some of the oases cited in Mullah’s Civil Procedure Code that to pass a decree ex parte against a defendant, treating the delivery of summons by post to a person who was not shown to have been a defendant as a good service, is a material irregularity which affects the exercise of the jurisdiction of the Court and as such is fit to be revised under Section 115 of the Civil Procedure Code. The contention of the opposite party is, therefore, overruled and the order of the 9th of May of the Court below is set aside, and the suit will be dismissed as against the defendants Nos. 1 and 2 under Order IX, Rule 8.
5. The order of this Court dated the 6th August 1919 staying Title Suit No. 79 of 1919 in the Court of the Subordinate Judge, first Court, Patna, is hereby withdrawn.
