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2001 DIGILAW 189 (HP)

MADHU SANGHI v. UNION OF INDIA

2001-08-10

M.R.VERMA

body2001
JUDGMENT M.R. Verma, J.—This application under Order XII Rule 6 read with Order VIII Rule 10 and Section 151 of the Code of Civil Procedure (hereafter referred to as the Code) praying for announcing the judgment and decreeing the suit against the defendants jointly and severally has been moved by the plaintiffs. 2. The facts leading to the filing of this application, briefly stated, are as follows. Ashok Sanghi (since deceased and represented by his legal representatives, the present plaintiffs) instituted civil suit No. 5 of 1996 for damages in the sum of Rupees one crore plus interest thereon at the rate of 24% per annum till the realisation thereof. The case as made out in the plaint, in brief, is that on selection the deceased was appointed as Sub Divisional Officer/Assistant Design Engineer, a gazetted post, and joined as such on 4.4.1972. In July, 1979, his services were placed under the control of Bhakra Beas Management Board (hereafter referred to as BBMB) by an order of the Chief Engineer, Beas Sutlej Link Project. He had been drawing salary and allowances as permissible to the post held by him. However, while on extended extra-ordinary leave, he was transferred to Beas Management Board vide order dated 19.1.1981 and was relieved vide order dated 6.2.1981 w.e.f. 31.1.1981 retrospectively. The deceased had to file a writ petition to challenge this order which became infructuous because of withdrawal of the transfer orders and he joined his duties in BBMB w.e.f. 4.4.1981. His pay for 4.4.1981 to June, 1981 was not paid and he had to file a writ petition in the High Court. The General Manager, Beas Project, however, charge sheeted the deceased vide memorandum dated 21.7.1981 without any jurisdiction as he was an employee of the BBMB and not of the Beas Project. The deceased had to file another writ petition in the High Court. In the meanwhile, the proceedings in the departmental inquiry continued and the deceased was arrested in a case under Sections 353, 332, 504 and 506, IPC registered at the instance of the Inquiry Officer.. The trial Court acquitted the deceased in the said criminal case with the observations that the Inquiry Officer (complainant in the aforesaid criminal case) and the presenting officer "did not have unbiased mind and they acted with hostile animus" against the deceased. Criminal appeal against the said acquittal was dismissed by the High Court. The trial Court acquitted the deceased in the said criminal case with the observations that the Inquiry Officer (complainant in the aforesaid criminal case) and the presenting officer "did not have unbiased mind and they acted with hostile animus" against the deceased. Criminal appeal against the said acquittal was dismissed by the High Court. In view of the assurance that new Inquiry Officer would be appointed to conduct the departmental proceedings against the deceased and acceptance of offer as in memo No. 1901-02/CWP-555/84, the aforesaid writs filed by the deceased were withdrawn. The deceased was then declared surplus vide order dated 23.8.1985 of the General Manager, Beas Project and was transferred to Central (Surplus Staff) Cell of the Department of Personnel and Training without prejudice to the departmental inquiry and criminal case etc., already under consideration. On conclusion of departmental inquiry, the deceased was found guilty and liable to be dismissed from service but taking a lenient view only the period of his alleged absence from duty was treated as "unauthorised" loosing pay etc. for such period resulting in "break in service" not to be condoned. The Appellate Authority, however, exonerated the deceased of the charges against him. The defendants thereafter proceeded to recover rent from the deceased for rent free accommodation for the period 1.1.1981 to 4.8.1985 and also preferred review petition for review of the order quashing the punishment imposed on the deceased in the departmental inquiry and the orders of appellate authority were not implemented despite orders by the concerned Minister passed on the representation of the deceased and the pay, allowances and arrears to which the deceased was entitled to were not granted and he was made to work against a post of lower grade than the post held by him. By all these acts of the defendants, the deceased and his dependant family members were put to a state of deprivation and starvation for many years resulting in injury to their physical, mental and psychological health, untold miseries, sufferings and pains. Hence the suit assessing the general damages in the sum of Rs. 90,00,000, special damages in the sum of Rs. 9,50,000 and Rs. 50,000. However, the claim has been confined to Rs. 25 lacs only. 3. Hence the suit assessing the general damages in the sum of Rs. 90,00,000, special damages in the sum of Rs. 9,50,000 and Rs. 50,000. However, the claim has been confined to Rs. 25 lacs only. 3. The judgment and decree has now been prayed on the grounds that except defendants No. 5, 6 and 15 other defendants are not at issue, therefore, a judgment may be pronounced against defendants No. 1 to 4 and 7 to 14 and decree may be ordered to be drawn against them. Regarding issue No. 3 it is claimed that the question involved therein already stand answered in Dr H. Mukharjee v. S.K. Bhargawa, 1996 (2) Service Cases Today 702 (SC). And for the remainder the non-filing of written statement by non-contesting defendants is legally admission of the claim of the plaintiffs and in view of the admission of various documents filed with the plaint as also the deemed admissions of various such documents vide order dated 20.12.1999, a judgment be pronounced and decree passed against defendants No. 5 to 8 and 15 and thus the suit can be and may be decreed against all the defendants. 4. The application has been resisted for the defendants No. 1 to 8 and 11 to 15, though replies to the application have been filed only by defendants No. 5 to 8 and 15. 5. I have heard the learned Counsel for the parties at length and have also gone through the relevant records. 6. Order 8 Rule 10 of the Code 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." 7. The rule ibid apparently provides the course of action to be adopted by the Court on failure of the defendant to file written statement within the time granted by it. The rule empowers the Court to pronounce the judgment against such defendant or to pass any other order it may think fit in relation to the suit. The rule ibid apparently provides the course of action to be adopted by the Court on failure of the defendant to file written statement within the time granted by it. The rule empowers the Court to pronounce the judgment against such defendant or to pass any other order it may think fit in relation to the suit. It is, thus, not mandatory for the Court to pronounce a judgment and pass a decree in favour of the plaintiff because the defendant has failed to file a written statement. It has also the discretion to pass any other order which it may think proper in relation to the suit. The word "shall" in the rule ibid is not intended to whittle down the discretion of the Court to adopt either of the two courses open to it under the rule. 8. In the case in hand, the Court at the material time, that is at the time of failure of the concerned defendants to file written statement did not pronounce judgment against them but passed such other orders which led to the framing of issues on the basis of the pleadings of the contesting parties. Thus, the Court has not exercised the discretion of pronouncing a judgment against the concerned defendants but has exercised the second available course of action and, thus, the stage of action to be taken under Order 8 Rule 10 of the Code is over and what-ever orders were deemed fit and proper at the appropriate time, had been passed. There is, thus, no occasion now to revert back to that stage and re-examine as to what action ought to have been taken by the Court at the relevant time. 9. It may also be pointed out that powers of the Court under Order 8 Rule 10 of the Code being discretionary, the Court is not obliged to exercise its discretion in a manner it is invited by the party to exercise. This is, however, not to say that failure of a defendant or defendants to file written statement cannot be taken into account on any future occasion when the opportunity may arise to pronounce judgment without full trial such as under the provisions of Order 12 Rule 6 of the Code. 10. Order 12 Rule 6 of the Code reads as under:— "6. 10. Order 12 Rule 6 of the Code reads as under:— "6. Judgment on admissions.—(1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions. (2) Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced." 11. This rule empowers the Court either on its own motion or on the application of any party to make such order or give such judgment as it may think fit on the basis of admissions in the pleading or otherwise, at any stage without waiting for the final determination of any other controversy between the parties in the suit. However, the admission(s) on which a judgment can be claimed under this rule, must be clear and unambiguous. Such admission(s) must be of facts and any admission express or implied on a question of law will not be binding on the Court and if any question of law is involved, the Court will have to decide it irrespective of any admission by a party. More over, the powers under this rule are also discretionary and it is not incumbent on the Court to pass a judgment on admission in all cases. 12. The learned Counsel for the plaintiffs had contended that in view of the failure of the defendants No. 1 to 4 and 7 to 14 to file written statement, they are deemed to have admitted the claim of the plaintiffs. It was further contended that in view of the documents relied upon by the plaintiffs and the admission/deemed admission of such documents and for want of specific denial of the facts averred in the plaint, the claim of the plaintiffs further stands admitted enabling this Court to pass a judgment on the basis of such admissions. It was further contended that in view of the documents relied upon by the plaintiffs and the admission/deemed admission of such documents and for want of specific denial of the facts averred in the plaint, the claim of the plaintiffs further stands admitted enabling this Court to pass a judgment on the basis of such admissions. Regarding objection of the contesting defendants about want of jurisdiction in this Court to entertain the suit, the learned Counsel for the plaintiffs urged that this being a suit for damages, it is triable by this Court and by no other forum. 13. To substantiate his contention that a fact not specifically denied in the written statement is legally a fact admitted, the learned Counsel has relied on Jagjit Singh v. State of Punjab, (1993) 2 SCT 482; Ramphal v. State of Haryana, (1996) 4 SCT 528; Suresh Kumar v. State of Haryana, (1993) 4 SCT 716 and Jahuri Sah and others v. Dwarika Prasad Jhunjhunwala and others, AIR 1967 SC 109. The ratio in all these cases support the contention of the learned Counsel that when a fact is averred by one party and is not specifically denied by the other, must be deemed to have been admitted. There is no dispute about the legal proposition as in those cases. The exceptions to the general rule, however, are (i) that a fact admitted by one of the parties, cannot be treated as admission by others unless the party admitting such fact is shown to have the authority to admit it on behalf of them, and (ii) that admission by a party that a particular communication/representation was received by it, is not admission of the contents thereof. Thus, the documents of the plaintiffs admitted by one set of the defendants or deemed to have been admitted by some of them, cannot be said to have been admitted by the other defendants to whom those have not been put or who had no occasion to admit or deny them. Therefore, the documents admitted by one party or deemed to have been admitted by such party in this case, cannot be read against the other parties who have not admitted or against whom they are not deemed to have been admitted, unless they are formally proved. 14. Therefore, the documents admitted by one party or deemed to have been admitted by such party in this case, cannot be read against the other parties who have not admitted or against whom they are not deemed to have been admitted, unless they are formally proved. 14. It may be pointed out here that defendants No. 3, 5 to 8 and 11 to 15 have filed written statements. In view of such written statements, it cannot be said that none of the defendants except defendants Mo. 5, 6 and 15 are at issue with the plaintiffs and a judgment against them can be pronounced on admission. Defendants No. 3 and 11 to 14 in their written statements have claimed that they have no concern with paras 1 to 38 of the plaint and that the claim as made out relates to BBMB with which they have no concern. Defendants No. 7 and 8 in their written statement, apart from not admitting the claim of the plaintiffs, clearly and unequivocally have raised the objection that the suit is time barred. Defendants No. 5, 6 and 15 in their written statement, while denying the material and relevant facts, have raised the objection that the suit is time barred. In respect of the claim against defendants No. 9 and 10, who are though ex parte, the plaintiffs are yet to make out a clear case to pass a decree against them. 15. In view of the available pleadings as discussed above, the following issues as framed on 2.3.2000 necessarily arise in the suit for determination:— 1. Whether the plaintiff is entitled to the suit amount or any other amount? If so, from which of the defendants? OPR 2. Whether the suit is in time? OPP. 3. Whether this Court has no jurisdiction to try the suit in view of the preliminary objection No. 2? OPD 5, 6 and 15. 4. Whether the suit is bad for mis-joinder of defendant No. 15? If so, to what effect? OPD 5, 6 and 15. 5. Whether the plaintiff is estopped to file the suit due to his acts, deeds and conduct? OPD. 6. Whether the plaintiff has no cause of action as against the defendants No. 5, 6 and 15? OPD 5, 6 and 15. 7. Whether the suit is not maintainable as alleged? OPD 5, 6 and 15. 8. Relief. 16. 5. Whether the plaintiff is estopped to file the suit due to his acts, deeds and conduct? OPD. 6. Whether the plaintiff has no cause of action as against the defendants No. 5, 6 and 15? OPD 5, 6 and 15. 7. Whether the suit is not maintainable as alleged? OPD 5, 6 and 15. 8. Relief. 16. It is evident from the frame of the issues that most important questions of law and fact are involved in the suit. It is case of the plaintiffs that various alleged tortious acts were committed by different defendants at different time during the period 1.1.1981 to the date of filing of the suit and damages have been claimed for all such acts as is evident from the contents of para 40 of the plaint which raises the important questions regarding the suit being within or beyond the prescribed period of limitation. Similarly, assessment of quantum of damages is a matter of proof and not a matter of assumption on the basis of assessment/claim made by the plaintiffs. The joint and several decree against all the defendants as prayed for, cannot be granted unless their respective liabilities are clearly made out. 17. In view of the above discussions, it cannot be accepted that there is/are admission(s) of facts by the defendants which entitle the plaintiffs for the judgment and decree prayed for in this application. 18. In view of the above conclusion, it is not necessary at this stage to record findings regarding controversy about the jurisdiction of this Court which is subject matter of issue No. 3 supra. 19. As a result, this application is dismissed. Application dismissed.