Smt. Aisha Bi And Another v. M. Shamsher Khan

Bharuka, J.:—

Aggrieved by the Judgment and Decree dated 7.6.99 passed by the City Civil Judge, Bangalore in O.S 507/97, the defendants have preferred this Regular First Appeal under Section 96 of the Code of Civil Procedure.

2. The plaintiff had filed the above suit for partition and possession of the suit schedule house property. His case as made out in the plaint is that he is the son from the first wife of late Mohamad Haroon Khan, whereas the first defendant is the second wife of his late father and the second defendant is the son from the first defendant. It has further been stated in the plaint that the father of the plaintiff was employed as a Head Constable in Bombay Police Department and he died intestate on 17.2.76 while he was still in service leaving behind him the plaintiff and the two defendants as his legal heirs. The plaint further states that the first defendant had received Rs. 40,000/- towards the arrears of salary and other pensionary benefit of his late father on behalf of the family in the year 1978. According to the plaintiff put of the said amount the suit schedule property was ourchased under a sale deed which was registered on 11.4.80

3. The Order Sheet of the suit in question discloses that defendant-1 after service of summons had appeared in the proceedings on 27.6.98, but the case had to be adjourned because the summons could not be served on defendant-2. The Order dated 6.2.99 shows that ultimately defendant-2 was also served and time vas granted for filing the written statement by 25.5.99 Since by 25.5.99 no written statement was filed by the defendants, the case was posted for Judgment on 7.6.99 Even on that date neither written statement was filed nor defendant-2 appeared or filed any application seeking time for filing the written statement. Accordingly the Court below by relying on a Judgment of a learned Single Judge of this Court in the case of Mahantaswamigalu Guru v. Chairman Grama Panchayat of Managoli . ILR 1999 KAR 1942. passed the impugned order decreeing the suit.

4. The sole plaintiff-respondent has remained unrepresented before us. We have heard the learned Counsel for the defendants-appellants. In our opinion, keeping in view the facts as noticed above, the defendants are clearly guilty of not filing the written statement within the time prescribed by law. As such they have lost their right to file the written statement and the Court was within its jurisdiction to pronounce the Judgment under Order 8 Rule 5(2) read with Order 8 Rule 10 of the Code of Civil Procedure. But before proceeding to pronounce the Judgment, in the absence of the written statement the Court has to necessarily address itself to the facts of the case and the averments made in the plaint to ascertain whether the facts pleaded in the plaint needs to be proved by the plaintiff for securing the relief claimed by him and if the Court feels so, it can direct the plaintiff to adduce evidence in support of his pleadings. It as only thereafter the Judgment should be pronounced either dismissing the suit or decreeing the same.

5. The above aspect of the matter has now been finally settled by the Supreme Court in the case of Balraj Taneja v. Sunil Madan . 1999 8 SCC 396. wherein it has been held that:

“As pointed out earlier, the Court has not to act blindly upon the admission of a fact made by the defendant in his written statement nor should the Court proceed to pass judgment blindly merely because a written statement has not been filed by the defendant traversing the facts set out by the plaintiff in the plaint filed in the Court. In a case, specially where a written statement has not 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 the 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”.

(emphasis supplied)

5A. For the purpose of having a better understanding of the law declared by the Supreme Court in Balraj Tanuja's case (supra), we would like to reproduce the provisions contained in Rules 5(2) and 10 of Order VIII of Code of Civil Procedure which read as under:

“ORDER VIII RULE 5(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.

Order VIII Rule 10 - Where any party from a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce the judgment against him or make such order in relation to the suit as it think, and on pronounce of the judgment, a decree shall be drawn up.

6. At this stage we may also refer to two judgments pronounced by the learned Single Judges of this Court reported in the cases of Mahantaswamigalu Guru v. Chairman, Grama Panchayat of Mangoli (supra) and Sri Syed Ismail v. Smt. Shamshia Begum . ILR 2000 KAR 1338.. In our considered opinion, the view taken by the learned Judges in these two judgments require some amount of clarification for proper observance of law by the Trial Courts.

7. In the case of Mahantaswamigalu Guru (supra), the plaintiff had filed the suit for declaration of title over the suit property. The defendant, though served and represented by advocate, did not file any written statement. Still the plaintiff led evidence in support of his case. On the basis of evidence so led, the suit was decreed by the Trial Court. But, on appeal by the defendants, the said decree was reversed by the first Appellate Court on the ground that the plaintiff had failed to prove his case. Consequently, the plaintiff filed second appeal before this Court. The learned Single Judge allowed the second appeal by restoring the judgment and decree of the Trial Court by taking the view that “under Order VIII Rule 10 the suit should have been decreed without even embarking upon the luxury of trial”. The learned Judge after reproducing Order VIII Rule 10, further held that.-

“After the amendment, it is made clear that the Court shall ‘pronounce judgment against him’ and no option is given to the Court to do otherwise.”

8. The learned Single Judge while taking the above view, has overlooked the other part of Order VIII Rule 10, which, in case of failure on the part of the defendant to file written statement, empowers the Court to either “pronounce judgment against him” or “make such order in relation to the suit as he thinks fit”. In what circumstances, the latter option can be exercised by the Court has been explained by the Supreme Court in Balraj Taneja's case (supra). Therefore, the learned Single Judge was not correct in holding that in the situation contemplated by Order VIII Rule 10, the only option available to the Trial Court was to decree the suit in favour of the plaintiff. The ratio of this decision is therefore overruled.

9. In the subsequent judgment in the case of Sri Syed Ismail (supra), another learned Single Judge of this Court has taken the view that the law laid down by the learned Single Judge in Mahantaswamigalu's case (supra) is contrary to the judgment of the Supreme Court in the case of Balraj Taneja (supra) and therefore it is per incurium.

10. The latter judgment in the case of Sri Syed Ismail arose out of a partition suit. The defendants, who had already entered appearance through their advocates, did not choose to file any written statement. Therefore, the Trial Court, keeping in view the law laid down by this Court in the case of Mahantaswamigalu's case (supra) decreed the suit by passing a criptic order. The learned Single Judge set aside the order by holding that-

“The impugned order does not disclose the nature of pleading placed by the plaintiff and whether there is prima facie material to grant a decree in his favour. A judgment in favour of plaintiff is not automatic. The Court has to consider the case of the plaintiff and grant a decree in his favour. The learned Trial Judge has not referred to the pleadings of the plaintiff and the documents produced by him to substantiate even a prima facie case for grant of a decree in his favour. Therefore, the judgment and decree in favour of the plaintiff is not automatic on failure of the opposite party to put his defence. The Court can grant a judgment in favour of the party only upon consideration of the case of the plaintiff including appreciation of pleadings and evidence.”

11. In our considered opinion, the view taken by the learned Single Judge in Sri Syed Ismail's case as well is contrary to the spirit and substance of the law laid down by the Supreme Court in the case of Balraj Taneja (supra). It has been misconstrued by the learned Single Judge that in all cases covered by Order VIII Rule 10, evidence has necessarily to be recorded and the Court can pass a decree only on appreciation of both the pleading as well as the evidence. Further, it is wrong to say that for passing a decree under Order VIII Rule 10 CPC, the Court is required to find out only a prima facie case. It cannot be disputed that a decree can be passed only on the basis of the facts as conclusively found by the Court, may be admitted or if controverted through a written statement, then on determination thereof through evidence. Therefore, this judgment also cannot be held to have laid down the correct law. Accordingly, it is also overruled.

12. Now, we come to our reasonings and inferences. A reading of Rule 5(2) and Rule 10 of Order VIII of the CPC and the law laid down by the Supreme Court in Balraj Taneja's (supra), it is now clear that even if the defendant does not file his written statement, it is incumbent upon the Trial Court to apply itself to the facts pleaded by the plaintiff and come to its own conclusion that even if the facts as stated in the plaint are taken as true, it does not create any inbuilt inconsistency on facts requiring the same to be proved by the plaintiff by adducing evidence. In case, the Court, after going through plaint, finds that the facts disclosed therein gives rise to two versions of the foundational facts on which the relief ought to be based, then it will be necessary for the Court to direct the plaintiff to lead evidence so that on appreciation thereof the Court can ascertain the correct facts and thereupon either decree or dismiss the suit. But, if the Court finds that the facts pleaded are consistent and forms good basis for awarding the relief claimed, then the Court is required to decree the suit on the basis of the facts pleaded in the plaint, since in absence of written statement filed by the defendant controverting any of those facts, the same has to be taken as admitted.

13. Accordingly, we clarify here that in all cases where no written statement has been filed by the defendants, it is neither necessary nor appropriate to direct the plaintiff to adduce evidence in support of the facts pleaded by him in an indiscriminate manner. The Court has to pronounce the judgment and decree the suit if the facts pleaded does not admit of any in-built inconsistency giving rise to two different versions of the foundational facts. But even for doing so, the Court has to pass the judgment containing the relevant facts and the reasons for granting the relief.

14. In the present case, the impugned order has been passed by the Court below without applying itself to the facts of the case. Therefore, we set aside the impugned judgment and decree and direct the Court below to exercise its jurisdiction in the light of the law as explained above and proceed to dispose of the suit. It should be done within two months from the date of communication of this order.

15. It is further clarified that though in the facts of the present case, the defendants will have no right to file any written statement but they will be entitled to participate in the further proceedings.

16. The appeal is accordingly allowed. Parties to bear their own cost.