JUDGMENT Brijesh Kumar 1. This writ petition has been filed by the tenant against the order of the opposite party No. 2, Judge Small Causes, Lucknow, decreeing the suit against the petitioner under Order VIII Rule 10 CPC for non filing of the written statement. The petitioner had preferred a revision which too was rejected by opposite party No. 1, hence this writ petition impugning the orders of opposite parties Nos. 1 and 2, contained in Annexures 4 and 2, respectively, to the writ petition. 2. The opposite party No. 3 filed a suit for arrears of rent, ejectment and damages against the petitioner. The petitioner-defendant, after service of summons, had put in appearance before the trial court on 6-2-1985. On that date, the case was got adjourned on behalf of the petitioner-defendant. The next date fixed was 2-5-1985 and the defendant was allowed to file his written statement within one month. However, it appears that the written statement was not filed, nor the defendant or anyone on his behalf was present when the case was taken up on 2-5-1985. Consequently the trial court decreed the suit observing : "Called out Plaintiff counsel is present. None is for the defendant despite opportunity. No W. S. filed. It is thus a fit case to be proceeded with u/Or. 8 Rule 10 and I order accordingly. This is a suit for recovery of arrears of rent and ejectment to which no objection in the shape of W.S. has been filed. Hence the case stands proved and the plaintiff entitled to the relief claimed." The learned counsel for the petitioner has raised two contentions. The first contention is that the procedure adopted in Small Causes Courts suit is of summary nature. No date is fixed for filing of written statement or for settlement of issues. The date is fixed for final disposal ; therefore, Order VIII Rule 10 CPC is not applicable. The second contention is that the order was, undisputedly, passed by the trial court in the absence of the defendant. In that event the only course open for the trial court was to proceed under Order IX Rule 6 CPC and not under Order VIII Rule 10 CPC. 3. I have heard the learned counsels for the parties. 4. The second contention is that the order was, undisputedly, passed by the trial court in the absence of the defendant. In that event the only course open for the trial court was to proceed under Order IX Rule 6 CPC and not under Order VIII Rule 10 CPC. 3. I have heard the learned counsels for the parties. 4. Let us proceed with the first point, namely, about the applicability of Order VIII Rule 10 CPC in proceedings in the court of Judge Small Causes. Order VIII Rule 10 CPC 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 9 fails to present the same within the time permitted or fixed by the court, as the case may be, the court shall pronounce 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." Learned counsel for the petitioner has submitted that in cases tried by the Judge Small Causes Courts, no date for filing of written statement is fixed. It is straightway fixed for final hearing. He has referred to Order V Rule 5 CPC which reads as follows :- "5. Summons to be either to settle issues or for final disposal-The Court shall determine, at the time of issuing the summons, whether it shall be for the settlement of issues only, or for the final disposal of the suit; and the summons shall contain a direction accordingly : Provided that, in every suit heard by a Court of Small Causes, the summons shall be for the final disposal of the suit." on the basis of the above provision, it has been submitted that in a suit tried by a Court of Small Causes, it is not necessary for the defendant to file a written statement. The submission, further, is that in a case where the defendant himself opts to file a written statement and seeks time for the same but fails to file it, in such a case Order VIII Rule 10 CPC will not be applicable inasmuch as it will not amount to legal requirement to file a written statement. The submission, further, is that in a case where the defendant himself opts to file a written statement and seeks time for the same but fails to file it, in such a case Order VIII Rule 10 CPC will not be applicable inasmuch as it will not amount to legal requirement to file a written statement. In support of this contention, reliance has been placed upon a case reported in Union of India v. Bhagwan Dass, AIR 1976 Delhi 96. The defendant in that case had moved an application for some time to file written statement which was allowed and time was also extended thereafter but no written statement was filed. The court resorted to the provisions of Order VIII Rule 10 CPC. It was held that the defendant, at its own, wanted to file written statement, and that it was not required by the court to file the same; therefore, Order VIII Rule 10 CPC would not be applicable. It was further held that in such circumstances it would not amount to admission of facts alleged in the plaint under Order VIII Rule 5 CPC. The court was of the view that according to the provisions contained in Order VIII Rule 10 CPC, there should be 'requirement' of filing a written statement as provided under Order VIII Rule 9 CPC. 5. Provisions of Order L CPC may be perused for finding out the procedure which is to be adopted by the Court of Judge Small Causes in proceedings before these courts. Order L of the Code of Civil Procedure gives specific provisions of the Code of Civil Procedure which do not apply in proceedings before the Court of Judge Small Causes. It does not mention about Order VIII CPC that is to say, Order VIII CPC has not been made inapplicable to the proceedings in the Court of Judge Small Causes. Order VIII Rule 1 CPC provides as follows :- "(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." Order VIII Rule 1 CPC, as presently it stands, was amended in the year 1976 by means of section 58 of the Amendment Act, 1976 with effect from 1-2- 1977. Prior to the amendment, the provision for filing a written statement was different. Prior to the amendment, the provision for filing a written statement was different. Earlier the provision was that the defendant "may" and if so required by the Court, file a written statement but these words have been omitted by the Amendment Act, 1976 and it has been provided that the defendant "shall", at or before the first hearing present a written statement of his defence. Prior to amendment a written statement could be filed at the option of the defendant or in a case where it was so required by the Court but now the position is changed and it is obligatory upon the defendant to file a written statement. It is now a statutory requirement under Order VIII Rule 1 of the Code of Civil Procedure. As pointed out earlier the application of Order VIII CPC has not been excluded under Order L CPC ; therefore, it cannot be said that in cases before the Judge Small Causes Court, it is not required or necessary to file a written statement, nor any such inference can be drawn from the fact that in such cases straightway a date for final hearing is fixed under Order V, Rule 5 CPC. Order VIII Rule 1 CPC provides that the defendant shall file a written statement of his defence at or before the first hearing, that is to say, a written statement is to be filed by the date of first hearing or within the time permitted by the Court. The case of Delhi High Court reported in 1976 Delhi 96 has no application in the present case as that case related to unamended provisions of Order VIII Rule 1 CPC, since the order was passed by the trial court sometime in the year 1976. Under Order VIII Rule 10 CPC, an order can be passed only when the defendant fails to file a written statement as required under Order VIII Rule 1 CPC or Order VIII Rule 9 CPC. After the amendment it has become a statutory requirement . in every case to file a written statement under Order VIII Rule 1 CPC. Therefore, on failure to file a written statement, resort can be had to Order VIII Rule 10 CPC even-in cases before the Judge Small Causes Court. 6. I may now advert to the next submission made on behalf of the petitioner. in every case to file a written statement under Order VIII Rule 1 CPC. Therefore, on failure to file a written statement, resort can be had to Order VIII Rule 10 CPC even-in cases before the Judge Small Causes Court. 6. I may now advert to the next submission made on behalf of the petitioner. A perusal of the impugned order passed by the trial court itself indicates that the order was passed in absence of the defendant and his counsel. The question is, in such circumstances, the court should have resorted to the procedure provided under Order IX Rule 6 or under Order VIII Rule 10 CPC for non-filing of the written statement. Order IX Rule 6 CPC provides as follows :- "Procedure when only plaintiff appears.- (1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then- (a) When summons duly served. If it is proved that the summons was duly served, the court may make an order that the suit be heard ex parte ; In the case in hand, there is no dispute about the fact that the summons was duly served upon the defendant. The date fixed was for final disposal of the case. At the time when the case was called out neither the defendant nor his counsel was present and the order was passed in their absence decreeing the suit for the reason that no written statement was filed. On analysing the different provisions under the Code of Civil Procedure the effect of non filing of the written statement is that it is taken that the specific averments made in the plaint are admitted to the defendant. It is in this context that the court has been empowered to pronounce judgment against the defendant. The court has, however, also been given a discretion under Order VIII Rule 10 CPC to pass such other order as it may think fit. Order VIII Rule 5 CPC is also relevant in this context. It reads as follows :- "5. It is in this context that the court has been empowered to pronounce judgment against the defendant. The court has, however, also been given a discretion under Order VIII Rule 10 CPC to pass such other order as it may think fit. Order VIII Rule 5 CPC is also relevant in this context. It reads as follows :- "5. Specific denial.- (1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not amended in the pleading of the defendant, shall be taken to be admitted except as against a person under disability : Provided that the court may in its discretion require any fact so admitted to be proved otherwise than by such admission. (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. (3) In exercising its discretion under the proviso to sub-rule (1) or under sub-rule (2), the court shall have due regard to the fact whether the defendant could have, or has engaged a pleader. (4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced." Under sub-rule (2) the discretion has been vested in the Court to pronounce judgment in the case on the basis of the facts contained in the plaint where the defendant does not file his written statement. The Court still has discretion to require the plaintiff to prove the facts pleaded in the plaint. Thus, when the Court exercises its discretion to pronounce judgment against the defendant for the reason that he has not filed his written statement and accepting the averments made in the plaint as correct, it is, in a way, a judgment on merits on the basis of the material whatever is available on the record of the case. In the present case also, the trial court has held that the plaintiff's case stands proved. 7. It has always been considered appropriate that the orders on merits, should be passed in the presence of the parties. In the present case also, the trial court has held that the plaintiff's case stands proved. 7. It has always been considered appropriate that the orders on merits, should be passed in the presence of the parties. In absence, only an order, as provided under the law, should be passed. Order IX Rule 6 CPC specifically deals with a situation where plaintiff is present but the defendant is absent. Order or judgment on merits, for reason of absence of a party is not envisaged under the relevant provisions. The court may either dismiss a suit for default or order to proceed ex parte for absence of the defendant as the case may be. 8. It is, no doubt, true that in the present case the written statement has also not been filed by the defendant. Nonetheless he had failed to turn up on the date fixed and the order was passed in his absence. It would have been only proper for the trial court to order to proceed in the case, ex-parte, rather than to pronounce the judgment for the reason of non filing of the written statement under Order VIII Rule 10 CPC. On the facts of the case, provisions of Order IX Rule 6 CPC, were more appropriately attracted rather than that of Order VIII Rule 10 CPC. In this connection, it may be observed that where both the infirmities are there, viz. where the defendant has not filed his written statement and is also absent on the date fixed, in that event the order, which is required to be passed in absence of the defendant, should be passed. In a way, Order VIII Rule 10 CPC envisages an order, namely, pronouncement of judgment in the presence of the defendant but in absence of his written statement. Similarly, in absence of defendant an order to proceed ex parte will have to be passed irrespective of the fact whether the written statement had been filed or not. There is good reason for doing so. In a given case it is quite possible that the defendant may think of raising such objections, on the basis of the admitted facts in absence of written statement, which may non suit the plaintiff. There is good reason for doing so. In a given case it is quite possible that the defendant may think of raising such objections, on the basis of the admitted facts in absence of written statement, which may non suit the plaintiff. The defendant may, for example, raise objection of any statutory bar to the filing of the suit, or about pecuniary or territorial jurisdiction or question of limitation and may substantiate his plea on the basis of the facts stated in the plaint itself. If the suit proceeds ex parte due to absence of the defendant, he may later on apply for setting aside the ex-parte decree or order for proceeding ex-parte by showing good and sufficient cause of absence on the date fixed. But by passing a decree under Order VIII Rule 10 CPC the opportunity to show sufficient and good cause for absence is completely shut out. 9. I have gone through the order passed by the revisional court and I find that it was not correct in observing that the court is not left with any option but to pass the decree in favour of the plaintiff in absence of written statement. Order VIII Rule 10 CPC itself is clear when it provides that the court may pronounce the judgment or pass such other order which it may think fit. So there is no legal compulsion to always pass an order decreeing the suit. In any case, as observed earlier, when there is a specific provision under the Civil Procedure Code dealing with a situation where the defendant is absent, that provisions should have been resorted to instead pronouncing the judgment under Order VIII Rule 10 CPC. The trial court was not right in pronouncing the judgment under Order VIII Rule 10 CPC in absence of the defendant. 10. For this reason the petition deserves to be allowed and orders passed by opposite parties No 1 and 2 are liable to be quashed. It is a matter relating to landlord and tenant. It is very common in such matters for the interested party to prolong the proceedings as far as possible. It causes unnecessary harassment to the other party. I find that the case was filed sometime in 1984 and wis decreed in 1985. Since then it has been pending in revisional proceeding and in this Court. It is very common in such matters for the interested party to prolong the proceedings as far as possible. It causes unnecessary harassment to the other party. I find that the case was filed sometime in 1984 and wis decreed in 1985. Since then it has been pending in revisional proceeding and in this Court. Four years have already passed and the plaintiff is being placed in the same position where he was four years back. In these circumstances, it will be proper for the trial court to dispose of the matter at the earliest and, if possible, within six months from the date of receipt of the copy of this order which may be made available to it by any of the parties. 11. In the result, the petition is allowed and the orders passed by opposite parties No. 1 and 2, contained in Annexure 4 and 2 respectively, are quashed. The parties shall appear before the trial court on October 10, 1988. There would be no order as to costs. 12. If any of the parties applies for a copy of this judgment, the same shall be issued within two weeks of the application on deposit of the necessary charges. Petition allowed.