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2000 DIGILAW 68 (KAR)

SYED ISMAIL v. SHAMSHIA BEGUM

2000-01-21

H.N.NARAYAN

body2000
H. N. NARAYAN, J. ( 1 ) THIS matter being listed for admission, the same is taken up for final disposal as respondents 1 and 2 remained unrepresented after service of notice. Heard and disposed of by this judgment. ( 2 ) 1st respondent filed a suit for partition and separate possession of the suit schedule properties. The defendants who entered appearance through their Advocate failed to file the written statement. The matter was thereafter set down for the evidence of the plaintiff. In the meantime, the judgment of this Court was reported in Mahanta-Swamigalu Guru v. Chairman, Grama Panchayat of Managoli, ILR (1999) Kant 1942 wherein this Court held thus :"where the defendants represented by the advocates have not filed the written statement, that suit has to be decreed without even embarking upon the luxury of trial. " ( 3 ) 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. A similar question came up for consideration before the Apex Court in Balraj Taneja v. Sunil Madan, (1999) 8 SCC 396 : ( AIR 1999 SC 3381 ). 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. A similar question came up for consideration before the Apex Court in Balraj Taneja v. Sunil Madan, (1999) 8 SCC 396 : ( AIR 1999 SC 3381 ). The Supreme Court has laid down while considering the ambit of Order 8, Rules 10 and 5 (2) and Order 12, Rule 6 and Order 6, Rules 2 and 4 and Order 7, Rule 1 (e), C. P. C. as follows :-"just as under Order 12, Rule 6, C. P. C. the Court cannot act blindly upon the admission of a fact made by the defendant in his written statement the Court should not 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. . . . . 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. . . . . . The proviso to Order 8 Rule 5 (1) and Rule 5 (2) read together indicate that where (i) an allegation of fact made in the plaint is not denied specifically, or (ii) by necessary implication, or (iii) stated to be "not admitted" in the pleading of the defendant, or (iv) the defendant has not filed the written statement,such allegations of facts shall be treated as admitted. The Court in such situation can either proceed to pronounce judgment on such admitted facts or may require the plaintiff, in spite of such admission, to prove such facts. Order 8 Rule 5 (2) is thus an enabling provision which enables the Court to pronounce judgment on the basis of the facts contained in the plaint, if the defendant has not filed a written statement. What is important to note is that even though a written statement is not filed by the defendant, the Court may still require a fact pleaded in the plaint to be proved. "it is further observed that :"there are two separate and distinct provisions under which the Court can pronounce judgment on the failure of the defendant to file written statement. The failure may be either under Order 8 Rule 5 (2) under which the Court may either pronounce judgment on the basis of the facts set out in the plaint or require the plaintiff to prove any such fact; or the failure may be under Order 8 Rule 10 CPC under which the Court is required to pronounce judgment against the defendant or to pass such order in relation to the suit as it thinks fit. "judgment" as defined in Section 2 (9) of the Code of Civil Procedure means the statement given by the Judge of the grounds for a decree or order. What a judgment should contain is indicated in Order 20, Rule 4 (2 ). "judgment" as defined in Section 2 (9) of the Code of Civil Procedure means the statement given by the Judge of the grounds for a decree or order. What a judgment should contain is indicated in Order 20, Rule 4 (2 ). It should be a self contained document from which it should appear as to what were the facts of the case and what was the controversy which was tried to be settled by the Court and in what manner. The process of reasoning by which the Court came to the ultimate conclusion and decreed the suit should be reflected clearly in the judgment. Whether it is a case which is contested by the defendants by filing a written statement, or a case which proceeds ex-parte and is ultimately decided as an ex parte case, or is a case in which the written statement is not filed and the case is decided under Order 8 Rule 10, the Court has to write a judgment which must be in conformity with the provisions of the Civil Procedure Code or at least set out the reasoning by which the controversy is resolved. Even if the definition were not contained in Section 2 (9) or the contents thereof were not indicated in Order 20 Rule 4 (2) CPC, the judgment would still mean the process of reasoning by which a Judge decides a case in favour of one party and against the other. In judicial proceedings, there cannot be arbitrary orders. A Judge cannot merely say "suit decreed" or "suit dismissed". The whole process of reasoning has to be set out for deciding the case one way or the other. ( 4 ) THE nature of judgment pronounced in the case on hand can be deprecated in the words of the Apex Court. A perusal of the above judgment will indicate that the suit has been decreed only because of the failure of the defendants in filing the written statement. This exhibits the annoyance of the Court which is natural as no court would allow the proceedings to be delayed or procrastinated. A perusal of the above judgment will indicate that the suit has been decreed only because of the failure of the defendants in filing the written statement. This exhibits the annoyance of the Court which is natural as no court would allow the proceedings to be delayed or procrastinated. But this should not disturb the judicial composure which unfortunately is apparent in the instant case as the judgment neither sets out the facts of the case nor does it record the process of reasoning by which the Court felt that the case of the plaintiff was true and stood proved. ( 5 ) IT is unnecessary for me to prolong this discussion. The judgment in Mahanta-swamigalu Guru v. Chairman, Grama Panchayat of Managoli, ILR 1999 Kant 1942 is rendered without reference to the judgment of the Apex Court cited supra. Therefore it is difficult for me to concur with the judgment rendered by this Court which is contrary to the judgment of the Apex Court. The impugned judgment therefore does not stand to legal scrutiny as the judgment is not in conformity with Section 2 (9) of CPC and Order 20 Rule 4 (2) CPC. Therefore the impugned judgment and decree of the trial Court is set aside and the matter is remitted to the Court below for fresh disposal in accordance with law. It is open to the defendants to make necessary application seeking leave of the Court to file their defence and the learned trial Judge shall dispose of the matter after giving opportunity to both the parties. --- *** --- .