Court to act cautiously while pronouncing judgment in a case where opposite party (Defendant) fails to file Written Statement#indianlaws

The Supreme Court has ruled that the Court, at no stage, can act blindly or mechanically. While enabling the Court to pronounce judgment in a situation where no Written Statement is filed by the defendant, the Court has also been given the discretion to pass such order as it may think fit as an alternative. This is also the position under Order 8 Rule 10 CPC where the Court can either pronounce judgment against the defendant or pass such order as it may think fit. In a situation where no Written Statement has been filed by the defendant, the Court should be a little cautious in proceeding under Order 8 Rule 10 CPC. Before passing the judgment against the defendant it must see to it that even if the facts set out in the plaint are treated to have been admitted, a judgment could possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of Court’s satisfaction and, therefore, only on being satisfied that there is no fact which need be proved on account of deemed admission the Court can conveniently pass a judgment against the defendant who has not filed the Written Statement. But if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two different versions are set out in the plaint itself, it would not be safe for the Court to pass a judgment without requiring the plaintiff to prove the facts so as to settle the factual controversy. Such a case would be covered by the expression “the Court may, in its discretion, require any such fact to be proved” used in sub- rule (2) of Rule 5 of Order 8, or the expression “may make such order in relation to the suit as it thinks fit” used in Rule 10 of Order 8. In judicial proceedings, there cannot be arbitrary orders. A Judge cannot merely say “Suit decreed” or “Suit dismissed”. The whole process of reasoning has to be set out for deciding the case one way or the other.

Supreme Court in the matter namely Balraj Taneja and Anr. vs. Sunil Madan and Anr. (Civil Appeal No. 4968 of 1999, decided on 08.09.1999) dealt with the issue as to how Court should proceed in exercise of powers under Order 8 of the Code of Civil Procedure, 1908 (CPC) in a situation where Defendant fails to file written statement despite opportunities to the effect. In the instant matter, a Suit for specific performance was decreed under the provisions of Order 8 Rule 10 CPC. Prior to passing of decree opportunities were given to the Defendant to file the written statement which however could not be filed. Review application filed against the same was dismissed followed by dismissal of appeal as well. It was contended before the Court in appeal that the High Court was not justified in passing the decree against the Appellants merely on the ground that written statement was not filed by them on the date fixed for that purpose and such denial was contended to be wholly punitive in nature resulting in serious miscarriage of justice. It was further contended that once the Court had decreed the suit under Order 8 Rule 10 C.P.C., it ought to have written a “judgment” by stating clearly the facts of the case and the reasons for decreeing the suit. The suit could not in such circumstances be decreed merely for not filing of the written statement unless facts set out in the plaint were found proved. On the contrary, Appellants were alleged of adopting dilatory tactics and also besides they being negligent failing to indicate any reasons while seeking time to file written statement. The Court while dealing with the above issue took note of Order 8 Rule 5 of the CPC in the backdrop of Rule 1 (requiring defendant to file Written Statement of his defence), Rule 3 (requiring defendant to deal specifically with each allegation of fact in plaint) and Rule 4 (providing that denial of allegation made in the plaint not to be evasive). Rule 5 of Order 8 provides that every allegation of fact in the plaint, if not denied specifically or by necessary implication or stated to be not admitted in the written statement, shall be taken to be admitted. As provided, the scheme of this Rule is largely dependent upon the filing or non-filing of the pleading by the defendant. Sub-rule (1) of Rule 5 provides that any fact stated in the plaint, if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the defendant, shall be treated as admitted. Order 8 Rule 3 specifically provides that denial by the defendant in his written statement must be specific with reference to each allegation of fact made in the plaint. A general denial or an evasive denial is not treated as sufficient denial and, therefore, the denial, if not definite, positive and unambiguous, the allegations of facts made in the plaint would be treated as admitted. However, the proviso to this Rule gives discretion to Court, which may in its discretion, would still require such “admitted fact” to be proved otherwise than by such admission. This is an exception to the general rule of evidence that a fact which is admitted need not be proved. Sub-rule (2) provides that if the defendant has not filed his written statement, it would be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint. The Proviso and Sub- rule (2) read together indicate that where (i) an allegation of fact made in the plaint is not denied specifically, or (ii) by necessary implication, or (iii) stated to be “not admitted” in the pleading of the defendant, or (iv) the defendant has not filed the written statement, such allegations of facts shall be treated as admitted. The Court in this situation can either proceed to pronounce judgment on such admitted facts or may require the plaintiff, in spite of such admission, to prove such facts. Sub-rule (2) is an enabling provision which enables the Court to pronounce judgment on the basis of the facts contained in the plaint, if the defendant has not filed a Written Statement. What is important to note is that even though a Written Statement is not filed by the defendant, the court may still require a fact pleaded in the plaint to be proved. Court then also referred to Rule 9 of Order 8 to observe that where a party from whom a Written Statement is required either under Rule 1 or Rule 9 of Order 8 fails to present the same within the time permitted or fixed by the Court, the Court shall pronounce judgment against him or make such order in relation to the suit as it thinks fit. Rule 10 of Order 8 governs both the situations where a Written Statement is required under Rule 1 as also where it has been demanded under Rule 9. In both the situations, if the Written Statement has not been filed by the defendant, it will be open to the Court to pronounce judgment against him or make such order in relation to the suit as it thinks fit. If the Written Statement is not filed, the Court is required to pronounce judgment against the defendant. The words “against him” are to be found in Rule 10 of Order 9 which means that the judgment will be pronounced against the defendant. This rule also gives discretion either to pronounce judgment against the defendant or “make such order in relation to the suit as it thinks fit.” These words give discretion to the Court not to pronounce judgment against the defendant and instead pass such order as it may think fit in relation to the suit. There are thus two separate and distinct provisions under which the Court can pronounce judgment on the failure of the defendant to file Written Statement. The failure may be either under Order 8 Rule 5(2) under which the Court may either pronounce judgment on the basis of the facts set out in the plaint or require the plaintiff to prove any such fact; or the failure may be under Order 8 Rule 10 CPC under which the Court is required to pronounce judgment against the defendant or to pass such order in relation to the suit as it thinks fit. There is yet another provision under which it is possible for the Court to pronounce judgment on admission which is contained in Rule 6 of Order 12. Under this Rule, the Court can, at an interlocutory stage of the proceedings, pass a judgment on the basis of admissions made by the defendant. But before the Court can act upon the admission, it has to be shown that the admission is unequivocal, clear and positive. This Rule empowers the Court to pass judgment and decree in respect of admitted claims pending adjudication of the disputed claims in the suit. The provision of Order 12 Rule 6 has to be read along with Proviso to Rule 5 of Order 8 which means that notwithstanding the admission made by the defendant in his pleading, the Court may still require the plaintiff to prove the facts pleaded by him in the plaint. This is also in consonance with the provisions of Section 58 of the Evidence Act which says that facts admitted need not be proved. Its proviso however specifically gives discretion to the Court to require the facts admitted to be proved otherwise than by such admission. This Proviso corresponds to the Proviso to Rule 5(1) Order 8 CPC. Accordingly, the Court, at no stage, can act blindly or mechanically. While enabling the Court to pronounce judgment in a situation where no Written Statement is filed by the defendant, the Court has also been given the discretion to pass such order as it may think fit as an alternative. This is also the position under Order 8 Rule 10 CPC where the Court can either pronounce judgment against the defendant or pass such order as it may think fit. In a situation where no Written Statement has been filed by the defendant, the Court should be a little cautious in proceeding under Order 8 Rule 10 CPC. Before passing the judgment against the defendant it must see to it that even if the facts set out in the plaint are treated to have been admitted, a judgment could possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of Court’s satisfaction and, therefore, only on being satisfied that there is no fact which need be proved on account of deemed admission the Court can conveniently pass a judgment against the defendant who has not filed the Written Statement. But if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two different versions are set out in the plaint itself, it would not be safe for the Court to pass a judgment without requiring the plaintiff to prove the facts so as to settle the factual controversy. Such a case would be covered by the expression “the Court may, in its discretion, require any such fact to be proved” used in sub- rule (2) of Rule 5 of Order 8, or the expression “may make such order in relation to the suit as it thinks fit” used in Rule 10 of Order 8. In a suit for specific performance, as was the situation in the instant case, it is mandatorily required by Section 16 of the Specific Relief Act to plead readiness and willingness of the plaintiff to perform his part of the contract. The Court, before acting under Order 8 Rule 10 has to scrutinise the facts set out in the plaint to find out whether all the requirements, specially those indicated in Section 16 of the Specific Relief Act, have been complied with or not. Readiness and willingness of the plaintiff to perform his part of the contract is a condition precedent to the passing of a decree for specific performance in favour of the plaintiff. Impugned judgment in the instant matter indicated that the suit was decreed only because of the failure of the defendants in filing the written statement. This exhibited the annoyance of the Court as no Court would allow the proceedings to be delayed or procrastinated. However, judicial composure still cannot be disturbed as was so with the impugned judgment which besides not setting out facts of the case also did not record the process of reasoning by which the Court felt that the case of the plaintiff was true and stood proved. In judicial proceedings, there cannot be arbitrary orders. A Judge cannot merely say “Suit decreed” or “Suit dismissed”. The whole process of reasoning has to be set out for deciding the case one way or the other.