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Case Number

Civil Revn. No. 33 of 1986

Attorney(S)

G.N. Hagroo
B.M. Sadiq and Riaz Rasool (G.A.)
for Advocate General

Judges

Hon'ble Dr. Justice Adarsh Sein Anand

Acts

made.Sub-rule (1) of Rule 1 of Order VIII, C.P.C provides:(1)
Court.Sub-rule (2) of Rule 5 of O. VIII, C.P.C reads thus:(2)
Rule 10, both Rule 10 as well as sub-rule (2) of Rule 5
sub-rule (2) of Rule 5 which sub-rule
Rule 10 or by sub-rule (2) of Rule 5
sub-rule (2) of Rule 5 with Rule 10
provisions of Order IX, Rule 7,
Rule 10 of Order VIII, C.P.C
Rule 10 read with Rule 5(2),
Order VIII, Rule 10, C.P.C
sub-rule (1) or sub-rule (2),
Order IX, Rule 7, C.P.C
Rule 10 of Order VIII
sub-rule (3) of Rule 5,
Order VIII, Rule 10
Rule 1 or Rule 8

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Smart Summary

Structured Summary of the Provided Opinion

Factual and Procedural Background

The defendant (appellant) filed a revision petition on 4-4-1989 contending that because the District Judge, Anantnag, was not available in the district the impugned order could not be challenged in appeal before him. Learned counsel for the plaintiff-respondent initially objected to the maintainability of the petition but subsequently withdrew that objection and both parties agreed that, in the peculiar facts and circumstances, the revision petition be treated as an appeal. The petition was accordingly treated as an appeal.

On 30-12-1985 the plaintiff-respondent filed a suit for rendition of accounts and dissolution of partnership. Summons were issued to the defendants, and on 15-2-1986 the defendants' counsel appeared and was directed to file a written statement, originally due within the stipulated period and extended to 11-3-1986. Instead of filing a written statement on 11-3-1986, the defendant filed written preliminary objections and indicated that a written statement on merits would follow after decision on those objections.

The learned Sub-Judge, Bijbehara, by order dated 12-3-1986, held the preliminary objections to be without merit and concluded that, following the amendment of Order VIII of the Code of Civil Procedure, non-filing of the written statement on the date fixed mandated the Court to pronounce judgment against the defendants under Order VIII, Rule 10, C.P.C. The trial Court therefore passed a judgment and directed a preliminary decree to be drawn up without giving further opportunity to the defendant to file the written statement. The present appeal challenges that judgment and preliminary decree.

Legal Issues Presented

Whether the trial Court was correct in concluding that failure to file the written statement on the date fixed mandates the Court, after the amendment to Order VIII, C.P.C., to decree the suit under Rule 10 without leaving any discretion in the Court to pass any other order.
Procedural question resolved at the outset: whether the revision petition could be treated and disposed of as an appeal (the parties agreed it could and the petition was treated as an appeal).

Arguments of the Parties

Appellant's Arguments

The defendant-appellant filed the revision petition on the ground that the District Judge, Anantnag, was not available in the district and, therefore, the impugned order could not be challenged in appeal before him (a point taken regarding maintainability of the revision petition).
At the trial stage, the defendants (through counsel) had filed written preliminary objections on the date fixed for filing the written statement and stated that after decision on those preliminary objections they would file the written statement on merits.
At the time of this appeal, Mr. Hagroo (appearing for the appellant) pointed out certain defects in the suit (the opinion refrains from expressing a view on those defects and left them for the trial Court to consider if and when the written statement is filed).

Respondent's Arguments

Learned counsel for the plaintiff-respondent initially objected to the maintainability of the revision petition but later withdrew that objection and agreed that the petition be treated as an appeal for disposal.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Sangram Singh v. Election Tribunal, Kotah, AIR 1955 SC 425	That the expression “the Court may pronounce judgment against him or make such order in relation to the suit as it thinks fit” invests the court with the widest possible discretion to ensure justice to both sides.	The court relied on this authority to support the view that Order VIII, Rule 10 (read with Rule 5(2)) vests discretion in the trial Court and does not mandate an automatic decree solely because a written statement was not filed.

Court's Reasoning and Analysis

The Court examined the relevant provisions of Order VIII, C.P.C. and the interaction between:

Sub-rule (1) of Rule 1 of Order VIII (requiring the defendant to present a written statement at or before first hearing or within such time as the Court may permit);
Sub-rule (2) of Rule 5 of Order VIII (providing that where the defendant has not filed a pleading, it is lawful for the Court to pronounce judgment on the basis of facts in the plaint but the Court may in its discretion require any such fact to be proved); and
Rule 10 of Order VIII (prescribing consequences when a party required to present a written statement under Rule 1 or Rule 8 fails to do so within the time permitted).

The Court's step-by-step analytical points were:

The plain meaning of Rule 1(1) is that the defendant must file the written statement within time allowed by the Court.
Rule 5(2) contemplates that failure to file a written statement can be treated as admission of the plaint, but it explicitly gives the Court discretion to require the facts to be proved despite the non-filing; thus the Court may either pronounce judgment on assumed admissions or require proof.
Rule 10 uses the words “the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit.” The Court analysed the statutory language and highlighted the disjunctive “or” to show the legislature intended to grant discretion to the Court and not to remove it.
If Rule 10 were interpreted as eliminating all discretion and mandating an automatic decree on non-filing, it would conflict with Rule 5(2). A fundamental rule of statutory construction requires harmony between provisions, and such a conflict must be avoided.
The word “shall” in Rule 10 was not read as curtailing judicial discretion; instead the Court construed the rule harmoniously with Rule 5(2), taking the conjunction “or” in its ordinary disjunctive sense and, in context, as effectively allowing exceptions (the opinion notes that reading “or” to imply “unless” reconciles the provisions).
The Court further compared the situation with Order IX (procedures where a defendant does not appear), especially Order IX, Rule 7, to demonstrate that where an ex parte proceeding has run, the Court cannot easily restore the defendant to the same position without good cause; yet that does not mean a defendant who appears but misses filing a written statement should be worse off or better off in an arbitrary way. Thus Rule 10 must be read to allow judicial discretion to adjourn, grant more time, or require proof, depending on the facts.
The Court cited Sangram Singh to reinforce that the statutory phrasing invests the trial Court with the widest possible discretion to ensure justice to both sides.
Applying these principles to the present facts, the trial Court erred in holding it had no discretion under Rule 10 and therefore in passing a preliminary decree merely because the defendant failed to file the written statement by the stipulated date. The trial Court should have considered whether additional time was justified, could have overruled or deferred ruling on preliminary objections until the written statement was filed, or otherwise exercised discretion to do justice between the parties.

Holding and Implications

APPEAL ALLOWED; the judgment and the preliminary decree dated 12-3-1986 passed by the trial Court are set aside.

Consequences and directions explicitly ordered by the Court:

The defendant is permitted to file the written statement on or before 26-8-1989.
The defendant-appellant must pay Rs. 150.00 as costs to learned counsel for the plaintiff-respondent before that date.
If the defendant fails to file the written statement within the prescribed period, the trial Court is at liberty to pass such order as it deems fit in light of the observations made in this opinion.
The record is to be returned to the trial Court without delay and parties (through counsel) are directed to appear before the trial Court on 26-8-1989.
The trial Court is directed to proceed to decide the suit on merits in accordance with law.

Broader implications: The opinion interprets Order VIII, Rule 10 in harmony with Rule 5(2) and confirms that the trial Court has judicial discretion to either pronounce judgment for non-filing of the written statement or to make some other order (such as granting adjournment or requiring proof). The decision directs that the trial Court must exercise that discretion judiciously. The opinion does not announce that it is creating any new rule beyond this statutory interpretation; its direct effect is to set aside the trial Court's order and remit the matter for proper exercise of discretion and adjudication on merits.

Disposition: Appeal allowed.

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Abdul Gani Mir v. Mst. Sakina Bano And Another

1. The defendant filed this revision petition on 4-4-1989 on the plea that since the District Judge, Anantnag was not available in the district, the impugned order could not be challenged in appeal before him. Learned counsel for the plaintiff-respondent initially raised an objection to the maintainability of the revision petition, but then gave it up and learned counsel for the parties submitted that in the peculiary facts and circumstances of the case this petition may be treated as an appeal and disposed of accordingly. Their prayer is allowed and the petition is treated as an appeal.

2. The facts relevant for the disposal of the appeal may first be noticed.

3. The plaintiff-respondent filed a suit for rendition of accounts and dissolution of partnership on 30-12-1985. Summons were issued to the defendants and on 15-2-1986, counsel for the defendants appeared and was directed to file the written statement which was not filed within the stipulated period and the time was extended till 11-3-1986. However, on 11-3-1986, the defendant instead of filing the written statement filed some written preliminary objections, further stating that after the decision on the preliminary objections, the written statement on merits would be filed. Learned Sub-Judge, Bijbehara, vide his order dated 12-3-1986 did not find any merit in the preliminary objections and came to the conclusion that after the amendment of Order VIII of the Code of Civil Procedure, the non-filing of the written statement by the defendant on the date fixed by the Court mandated the Court to pronounce judgment ‘against the defendants’ and acting under Order VIII, Rule 10, C.P.C (as amended) passed a judgment and directed a preliminary decree to be drawn up without giving any further opportunity to the defendant to file the written statement. It is this judgment which has been impugned in this appeal.

4. The main question that arises for consideration, therefore, is: whether the trial Court was right in reaching the conclusion that failure to file the written statement on the date fixed for the purpose mandates the Court, after the amendment made in Order VIII, C.P.C to decree the suit under Rule 10, without leaving any discretion in the Court to pass any other order?

5. The answer to the question would depend upon the ambit and scope of certain provisions of Order VIII. A reference to the relevant provisions may now be made.

Sub-rule (1) of Rule 1 of Order VIII, C.P.C provides:

“(1) The defendant shall, at or before the first hearing or within such time as the Court may permit, present a written statement of his defence.”

The plain meaning of the Sub-rule is that the defendant must file his written statement within the time allowed by the Court.

Sub-rule (2) of Rule 5 of O. VIII, C.P.C reads thus:

“(2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may in its discretion require any such fact to be proved.”

6. A bare reading of the rule suggests that non-filing of the written statement by the defendant can be construed as an admission of the plaint by him and it would be lawful for the Court to pronounce a judgment for that reason alone. The rule, however, gives a discretion to the Court to require the facts, alleged in the plaint, to be proved otherwise than by such implied admission notwithstanding the non-filing of the written statement by the defendant. It, therefore, follows that as a result of the non-filing of the written statement, the Court in its discretion has the power to pronounce a judgment either way treating the averments made in the plaint as admitted. The Court may decree the suit in plaintiff's favour merely on account of the non-filing of the written statement but is not obliged to do so and has the discretion to act one way or the other in each case depending on the facts and circumstances thereof but while exercising its discretion under sub-rule (1) or sub-rule (2), the Court shall as envisaged by sub-rule (3) of Rule 5, have due regard to the fact whether the defendant was represented by a lawyer or had capacity to engage one.

7. It now takes us at once to Rule 10 of Order VIII, C.P.C under which the trial Court has acted. This rule reads as under:

“10. Procedure when party fails to present written statement called for by Court. Where any party from whom a written statement is required under Rule 1 or Rule 8 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall proprounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment, a decree shall be drawn up.”

This rule prescribes the consequences for non-filing of the written statement required to be filed under the directions of the Court under Rule 1 or Rule 8. The rule indeed does provide that “the Court shall pronounce judgment” against the defendant on his failure to file the written statement required under Rule 1 or Rule 8 but it immediately proceeds to grant a discretion to the Court “or to make such order in relation to the suit as it thinks fit.” The use of the word “or” after “shall pronounce the judgment against him” shows that the legislature granted discretion to the Court even in this rule. The expression “or” must be given its plain and ordinary meaning. It is a disjunctive. It indicates that two powers contained in the rule before and after the word “or” were meant to lay down two distinct powers relating to the discretion of the Court and it could adopt either depending upon the peculiar facts of the case. As already notice, the failure of the defendant to file a written statement required under Rule 1 attracts the Court's power under sub-rule (2) of Rule 5 which sub-rule gives a discretion to the Court to pronounce the judgment one way or the other. In case Rule 10 is construed to mean that it leaves no discretion with the Court, on defendant's failure to file the written statement under Rule 1 and that the Court must necessarily pronounce a judgment “against the defendant” on that ground alone, then it is not possible to reconcile sub-rule (2) of Rule 5 with Rule 10 (supra) and it is fundamental rule of construction of statutes that the Courts must strive to reconcile and construct harmoniously different provisions of the statute.

8. In my opinion the use of the expression “shall” in Rule 10 was not meant by the legislature to whittle down the discretion given to the Courts either by Rule 10 or by sub-rule (2) of Rule 5 and that the legislature has in its supreme wisdom used the expression “or” in the rule, which enables the Court to adopt either of the two courses envisaged by Rule 10. A proper manner of harmoniously construing these rules would be to give ordinary meaning to the expression “or” which is disjunctive and in the context in which it has been used in Rule 10 read with Rule 5(2), it really implies “unless”. If “or” is construed in that manner in Rule 10, both Rule 10 as well as sub-rule (2) of Rule 5 would stand harmoniously construed and redundancy or conflict between the two provisions would be completely avoided.

9. There is yet another reason also which impels me to construe the provisions in the manner proposed above. Under Order IX, C.P.C if the defendant does not appear at the first hearing, the Court can proceed “ex parte” which means that it can proceed without a written statement. Under Order IX, Rule 7, C.P.C unless a good cause is shown, the defendant cannot be relegated to the position that he would have occupied if he had appeared when the case had been set ex parte against him. The provisions of Order IX, Rule 7, imply that a defendant cannot put in a written statement unless he is allowed to do so and if the case is one in which the Court considers a written statement should have been put in, the consequences as envisaged by Order VIII, Rule 10 can be suffered, unless the Court proceeds to act in exercise of its judicial discretion otherwise and adjourn the case or grant more time to the defendant to file the written statement. The course to be adopted would depend upon the facts and circumstances of each case to be determined by the Court in exercise of its judicial discretion. It follows that when a defendant fails to appear and the suit proceeds ex parte, the plaintiff is required to make out a prima facie case by leading evidence and obviously the suit of the plaintiff cannot be decreed merely on account of the absence of the defendant. In case Rule 10 of Order VIII is to be construed, as leaving no discretion with the Court, but to decree the suit against the defendant on non-filing of the written statement within the stipulated period, it would undoubtedly imply giving of greater benefit to a defendant who does not even care to remain present as against a defendant who appears in the Court but does not file the written statement within the stipulated period. Such a result does not appeal to common sense. Therefore, Rule 10, in its ordinary meaning must be construed as giving the Court a discretion either to pronounce the judgment against the defendant on merely non-filing of the written statement ‘or to make such order in the suit as it thinks fit.’ The Court may in the latter case, grant more time to the defendant by adjourning the case, granting more time to the defendant by adjourning the case. The Court would, of course, have to in exercise of its judicial discretion, in the first instance, decide the question whether a case for granting more time for filing the written statement is made out or not? It is only when the Court in exercise of its proper judicial discretion, comes to the conclusion that no further time can be granted to the defendant to file the written statement that the question of “pronouncing the judgment against him” for non-filing of the written statement would arise. Again “make such order in relation to the suit” occurring in Rule 10 also postulates a situation where requiring proof of the facts otherwise than by the deemed admission can arise. No hard and fast rule can be laid down about the nature of the “other order” to be made as contemplated by Rule 10. Each case has to be decided on its own peculiar facts. In the view that I have taken above, the Court would be vested with the power to pronounce the judgment against the defendant in a case where it finds no justification to make any “other order” in the suit, including the grant of adjournment for filing the written statement.

10. While considering the scope of a similar provision, though in a different context, their Lordships of the Supreme Court in Sangram Singh v. 1. Election Tribunal, Kotah, AIR 1955 SC 425 opined (in para 32) that the expression “the Court may pronounce judgment against him or make such order in relation to the suit as it thinks fit.”

“Invests the court with the widest possible discretion and enables it to see that the justice is done to both the sides.”

The answer to the question, therefore, posed in earlier part of this judgment would be that Order VIII, Rule 10, C.P.C vests a discretion in the Court either to pronounce judgment against the defendant on mere non-filing of the written statement or to make such other order in the suit as it thinks fit and that it is not the mandate of the rule that the Court has no discretion except to pronounce a judgment against the defendant.

11. Coming now to the facts of the present case, the trial Court, in my opinion, was in error when it took the view that under Order VIII, Rule 10, C.P.C it had no discretion in the matter and it was incumbent upon it to pass a preliminary decree in the suit in favour of the plaintiff simply because the defendant had not filed the written statement within the stipulated time. A perusal of the judgment of the trial Court itself shows that the defendant had in the written preliminary objections, pleaded that after the same are decided, he would file the written statement. The trial Court should, therefore, have considered whether in the facts of the case, some more time was required to be granted to the defendant to file the written statement or not. It could overrule the preliminary objections or defer decision thereon till the written statement was filed within the extended stipulated period, if any. By not following that procedure the Court did not exercise the discretion judiciously and obviously justice was not done to both the parties.

12. Though, Mr. Hagroo, appearing for the appellant, pointed out certain defects in the suit, I refrain from expressing any opinion thereon as it is for the trial Court to consider those defects, when pointed out in the written statement which may be filed by the defendant, for the case has to go back to the trial Court for its disposal in accordance with law.

13. Consequently, I allow this appeal and set aside the judgment and the preliminary decree passed by the trial Court on 12-3-1986. The defendant is permitted to file written statement on or before 26-8-1989. The defendant-appellant shall, however, pay Rs. 150.00 as costs to learned counsel for the plaintiff-despondent before the said date. In the event the defendant fails to file the written statement within this prescribed period, it shall be lawful for the Court to pass such order as it deems fit in the light of the observations made above.

14. Record of the case shall be returned to the Court below without delay. Parties through learned counsel are directed to appear before the trial Court on 26th August, 1989. The trial Court shall proceed to decide the suit on merit in accordance with law.

Appeal allowed.

Abdul Gani Mir v. Mst. Sakina Bano And Another

Structured Summary of the Provided Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Respondent's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Abdul Gani Mir v. Mst. Sakina Bano And Another

Comments