[1940] EACA 35

## **APPELLATE CIVIL**

## BEFORE THACKER, J.

## FAZAL HAQ, Appellant (Original Defendant)

## WASAWA SINGH S/O JWALA SINGH, Respondent (Original Plaintiff) Civil Appeal No. 28 of 1939

Civil Procedure-Filing of written statement of defence-Proof of failure to serve opposite party with a copy thereof—Application for judgment—Practice-Civil Procedure Rules, 1927, O. VIII r. 19, O. IX rr. 3, 4 and 9 (2).

Claim for a liquidated sum. Defendant duly entered an appearance and filed his written statement of his defence in Court but it was alleged that he had failed to deliver a duplicate to the plaintiff as he was required to do by O. VIII r. 19. Plaintiff obtained *ex parte* judgment in default on an allegation contained in a letter written to the Court that no duplicate of the written statement had been delivered to him.

Defendant appealed.

Held $(4-5-40)$ .—(1) That it is obligatory on a defendant to serve a copy of his written statement of defence on the plaintiff.

(2) That an allegation that the defendant had failed to do so must be proved by an affidavit or oral testimony if a written statement of defence has been filed in court.

(3) (semble) Where a written statement of defence has been filed in court but a duplicate thereof has not been delivered to the plaintiff, the better course is for the court to adjourn the consideration of the application for judgment on that ground and to give the defendant a further opportunity of serving a copy on the plaintiff.

Appeal allowed and judgment set aside.

Cresswel! for the appellant.

Allan for the respondent.

JUDGMENT.—In this appeal the appellant appeals against the ex parte judgment of the Resident Magistrate, Nakuru. The facts are as follows:

On the 18th May, 1939, the plaintiff (respondent) filed a suit for a liquidated sum. On the 28th May the defendant (appellant) entered an appearance. Later. he filed with the Resident Magistrate's Court a statement of defence. I am informed by Mr. Allan for the respondent that no copy of this defence was served on him as it should have been under the provisions of Order 8 Rule 19 Civil Procedure Code. That the Court was aware of this omission is apparent from a letter to the Resident Magistrate on the record dated 13-9-39 from Mr. Saville who was then acting for the plaintiff. The suit came up for hearing on the 19th September, 1939, and the Resident Magistrate's judgment is as follows:-

"In my view the filing of a defence is completed by two acts which are mandatory under Order VIII Rule 19, (a) delivery to Court for placing upon the record and $(b)$ by delivering a duplicate to the other party. If either of these conditions is unfulfilled defence is not properly filed. Therefore upon application by advocate for plaintiff (whose address is given for service) I enter judgment for plaintiff as prayed."

It is argued for the appellant that the Court should not have entered judgment as it was aware that a defence has been filed in Court. I think the better - course for the magistrate would have been to have adjourned the case and to have given the defendant an opportunity of serving a copy of the defence on the plaintiff. It is further submitted that it is not sufficient for the advocate of the plaintiff to inform the Court orally or in a letter that no defence had been served on him, but that an affidavit or other legal proof of non-delivery of defence should be filed. The appellant states that having filed his defence with the Court justice has not been done to him and that his appeal should be allowed. It is also argued that proof of the debt should have been adduced. The proviso to Order IX Rule 9 (2) appears however to show that this latter submission is unsound.

It is clearly obligatory on the defendant to serve a copy of his defence on the plaintiff and there is nothing before me to show that it has been so served. Must this admission be proved by evidence before the Court or is it sufficient for the fact to be notified to the Court by the plaintiff's advocate? It may be mentioned that at the lower Court the defendant did not appear nor was he represented, so I am informed by Mr. Allan for the respondent.

There is nothing in the Indian Code of Civil Procedure to help me, as there is no order analogous to Order VIII Rule 19 in the Code according to the comparative table at the end of our Civil Procedure Code, nor is there any exact analogy in the English Rules of the Supreme Court (Annual Practice).

My own view is that the appellant's submission must prevail and that it is necessary to prove the fact alleged, namely that a defence has not been served on the plaintiff, either by oral testimony or by affidavit.

I am informed by Mr. Allan for the respondent that the practice in the past in Nakuru has been merely to inform the magistrate that the defendant has failed to file a defence and that judgment is then asked for and entered. This I think can be the practice only where the defendant has filed no defence, that is, where he has failed to file a defence in Court and has also failed to serve the plaintiff with a copy of the defence. In this case however the defendant had filed his defence in Court and for some reason best known to himself, probably through ignorance of the proper procedure, he had not served a copy of the defence on the plaintiff. The circumstances are therefore different and the provisions of Order IX Rule 9 (2) and Rules 4 and 3 are not applicable in their entirety. In my judgment, on this somewhat difficult point, I think that an affidavit should have been filed by the plaintiff or other legal proof given before judgment was entered. For these reasons this appeal must succeed and the judgment of the Resident Magistrate be set aside. Both parties were in the wrong and for this reason I shall make no order as to costs.