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Gauhati High Court · body

1996 DIGILAW 149 (GAU)

Deputy Commissioner, Goalpara v. Nazimuddin Ahmed

1996-07-10

A.K.PATNAIK

body1996
The facts very briefly are that the respondent-plaintiff filed Title Suit No.7 of 1988 in the Court of the MunsiffNo.l, Goalpara. The case of the plaintiff in the said title suit is that by registered Sale Deed No.3399 dated 2.7.94, defendant No.5 sold the suit land and delivered possession of the same to the plaintiff. But thereafter by a subsequent Gift No.456 dated 5.5.86, defendant Nos.4 and 5 transferred the suit land in favour of State of Assam, defendant No.l. On the strength of the said Gift Deed dated 5.5.86, defendant Nos.2 and 3 have trespassed into the suit land, forcibly occupied the same and constructed structure thereon. The plaintiff thereafter served notice under section 80 CPC on the defendant Nos.l, 2 and 3 filed the suit for declaration of his right and title to the suit land and for a declaration that the Gift Deed No.456 dated 5.5.86 is null and void and for recovery of possession of the suit land. After the summons were issued by the trial Court, the defendants appeared and sought for adjournments on various dates for filing written statement but the written statement was not filed and by order dated 4.8.88 the learned Munsiff passed judgment in terms of the plaint and decreed the suit. Appeals were by the defendants against the said exparte decree dated 4.8.88 before the learned District Judge, Goalpara which were numbered as Title Appeal No.25 and 26 of 1988, but the said appeals were also dismissed by the learned District Judge, Goalpara. Aggrieved, the defendants have filed this second appeal before this Court. 2. The only substantial question of law urged by Mr. M. Singh, learned counsel appearing for the appellants, is that under the provision of Order VIII Rule 5 sub-rule (2) Order VIII Rule 10 of the CPC, the learned Munsiff was not bound to pass a judgment in terms of the plaint on failure of the appellant-defendants to file the written statement on 4.8.88. According to Mr. M. Singh, learned counsel appearing for the appellants, is that under the provision of Order VIII Rule 5 sub-rule (2) Order VIII Rule 10 of the CPC, the learned Munsiff was not bound to pass a judgment in terms of the plaint on failure of the appellant-defendants to file the written statement on 4.8.88. According to Mr. Singh, a discretion has been vested in the Court under the said provisions of the CPC and in the present case, since an application for adjournment had been filed by the appellants seeking an adjournment to file written statement on the ground that a report had been called for by the authorities in respect of the suit land which had not been received, the learned Munsiff ought to have considered the said ground for adjournment before deciding to pass a judgment on the basis of the facts stated in the plaint in accordance with the said provisions of the CPC. Mr. Singh, relied on the judgment of the Division Bench of this Court in the case of State of Assam vs. Sri Basanta & others, AIR 1987 Gauhati 85 in which the action of the Court in refusing an adjournment to file the written statement and in . pronouncing judgment against the defendants was held is not sustainable in the facts of circumstances of that case. 3. Mr. AS Choudhury, learned counsel who appeared for the respondent, argued that since several dates had been taken earlier by the appellants for filing written statement, the learned Munsiff was justified in rejecting the petition for further adjournment for filing written statement and in pronouncing the judgment on the basis of facts stated in the plaint in accordance with the provisions of sub-rule (2) of Rule 5 and Rule 10 of the Order VIII of CPC. 4. 4. The language of sub-rule (3) of Rule 5 of Order VIII CPC itself makes it clear that the power under Order VIII sub-rule (2) of the CPC of the Court to pronounce a judgment on the basis of the facts contained in the plaint was a discretionary power and was not to be resorted to in every case where no written statement has been filed by the defendant In fact sub-rule (2) of Rule 5 of the CPC itself states that it shall be 'lawful' for the Court to pronounce judgment on the basis of facts contained in the plaint where the defendant does not file his pleadings. The word 'lawful' indicates that it is only permissible for the Court to pronounce a judgment on the basis of the facts stated in the plaint in case defendant does not file written statement. Similarly, a reading of Rule 10 of Order VIII CPC states that where written statement was not filed by a party 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 deems fit. Hence under the provisions of Rule 10 of Order VIII of the CPC the Court may resort to either of the two courses of action; it may either pronounce a judgment against the defendant or make such order in relation to the suit as it deem fit. It is thus clear from the, very language of sub-rules (2) and (3) of the Rule 5 and of Rule 10 of Order VIII that it is not mandatory for the Court in every case to pronounce a judgment on the basis .of the facts stated in the plaint where a defendant fails to file written statement within the time fixed by the Court and the Court will have to exercise it discretion in such case where a written statement is not filed within the time fixed by the Court whether or not to pronounce a judgment in terms of the plaint. 5. In the facts of the present case, an adjournment petition had been filed by defendant Nos.l, 2 and 3 on 4.8.88 stating therein that a report had been called by the authorities in respect of the suit land in question for the purpose of enabling the said defendants to file written statement. 5. In the facts of the present case, an adjournment petition had been filed by defendant Nos.l, 2 and 3 on 4.8.88 stating therein that a report had been called by the authorities in respect of the suit land in question for the purpose of enabling the said defendants to file written statement. Instead of applying his mind specifically to the said ground stated in the adjournment petition, the learned Munsiff rejected the said prayers for adjournment made in two separate petitions filed by defendant Nos.l, 2 and 3 and defendant Nos.4 and 5 on the general ground that despite adjournments on 5 dates earlier the written statement has not been filed by the defendants and that the ground taken in the two petitions for further adjournment was not sound, pressing or bonafide. Since, an exparte judgment on the basis of the facts as stated in the plaint would have serious consequences for the defendants, before the Court resorted to the provisions of Order VIII Rule 10 CPC to pronounce a judgment against the defendants, the Court should have seriously considered the ground taken by the defendants for adjournment for filing the written statement and only if it had come to the conclusion that the specific ground taken by the defendants was not bonafide the Court could pronounce a judgment on the basis of facts stated in the plaint. 6. In the result, the judgment passed in Title Appeal Nos.25 of 1988 and 26 of 1988 by the learned District Judge, Goalpata and the judgment and decree passed by the learned Munsiff No.2, Goalpara in Title Suit No.7 of 1988 are set aside and the suit is remanded to the Court of the learned Munsiff No. 1, Goalpara, who will give one more opportunity to the defendants to file their written statement and thereafter proceed with the suit in accordance with law. The appeal is allowed. But considering the facts and circumstances of the case, the parties shall bear their own costs.