Mere non-filing of Written Statement will not entitle a decree under Order VIII Rule 10 CPC

In the matter of Asma Lateef & Anr. Vs. Shabbir Ahmad & Ors. Civil Appeal No. 9695/2013 decided by Hon’ble Supreme Court of India on 12.01.2024.

The facts of the case and issue on maintainability were discussed in the previous article dated 28.01.2024 bearing no. SP-01-2024. In the present case, the Apex Court also examined the scope and extent of power exercisable under Order VIII Rule 10 CPC and made the following observations-

The Apex Court noted that Rule 10 is permissive in nature, enabling the trial court to exercise either of the two alternatives i.e. to either pronounce a judgment or to make such order in relation to the suit as it considers fit. The Court observed that ‘the verb ‘shall’ in Rule 10 does not elevate the first alternative to the status of a mandatory provision, so much so that in every case where a party from whom a written statement is invited, fails to file it, the court must pronounce the judgment against him. If that were the purport, the second alternative to which ‘shall’ equally applies would be rendered otiose.’

Reiterating the principles laid down in Balraj Taneja vs. Sunil Tanwar (1999) 8 SCC 396, the Court held that “only on being satisfied that there is no fact which need to be proved on account of deemed admission, could the court pass a judgment against the defendant who has not filed the written statement; but if the plaint itself suggests involvement of disputed questions of fact, it would not be safe for the court to pass a judgment without requiring the plaintiff to prove the facts.”

The Court further observed that Balraj Taneja (supra) also laid down the law that provisions of Order VIII Rule 10 CPC is by no means mandatory in the sense that a court has no alternative but to pass a judgment in favour of the plaintiff, if the defendant fails or neglects to file his written statement. In order to be entitled to a judgment in his favour, the Plaintiff has to prove his pleaded case by adducing evidence. Rule 10 read with Rule 5 of Order VIII makes it clear that a trial court, at its discretion, may require any fact, treated as admitted, to be so proved otherwise than by such admission.

The Apex Court further observed that to avoid a situation of contradictory/inconsistent decrees as arose in the present case, the power under Rule 10 of Order VIII ought to be invoked with care, caution, and circumspection, only when none of several defendants file their written statements and upon the taking of evidence from the side of the plaintiff, if deemed necessary, the entire suit could be decided. As in the present case, where even one of several defendants had filed a written statement, it would be a judicious exercise of discretion for the court to opt for the second alternative in Rule 10 of Order VIII, CPC unless, of course, extraordinary circumstances exist warranting recourse to the first alternative.

(SP-02-2024)