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21. In the case of D.T. Kevmer v. P. Visvanathan Reddi reported in AIR 1916 PC 121, the defendant refused to answer interrogatories which had been submitted to him. Because of his refusal the defence was struck out. The merits of the case were not investigated and the defendant was treated as though he had not defended the suit. Judgment was given upon that footing, The Privy Council held that such a decision cannot be regarded as a decision given on the merits of the case within the meaning of section 13(b) of the Code of Civil Procedure. The Privy Council observed that in their Lordships' view sec. 13(b) refers to those cases where, for one reason or another, the controversy raised in the action has not, in fact, been the subject of direct adjudication by the Court. This decision has been followed in a number of subsequent decisions of this High Court as well as other High Courts.

22. The Full Bench of the Madras High Court in the case of R. E. Mahomed Kassim and Co. v. Seeni Pakir reported in AIR 1927 Madras 265 considered a foreign judgment which was passed on default of appearance, of the defendant without trial on evidence. The Madras High Court, following the Privy Council decision in Keymer's case, held that this was not a judgment on the merits of the case. It also said that there was in principle no distinction between a case where the defence of the defendant was struck out for not answering the interrogatories (as in the case before the Privy Council) and the case such as the one before them where the defendant did not appear at all. In both the cases, the Madras High Court said, the merits of the case had not been gone into. It overruled an earlier judgment of the Madras High Court in Janoo Hassan v. Mahamad Qhuthu which had held that in a case where the defendant did not appear and raise a defence, there would be an implied admission of the plaintiffs claim and hence the ex parte judgment should be considered as a judgment on merits.