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2011 DIGILAW 986 (RAJ)

Rukhi v. Barchha Ram

2011-05-10

VINEET KOTHARI

body2011
Hon'ble Dr. KOTHARI, J.—Heard the learned counsel for the parties. 2. The learned counsel for the appellant-defendant urged that the decree passed by the learned Court below in terms of Order 8 Rule 10 CPC is illegal and deserves to be set aside because she, true owner of the agricultural land in question admeasuring 23 bighas for which suit for specific performance has been decreed against the appellant, was never actually served with any summons of the learned Trial Court and therefore, the decree passed merely noticing that the written statement has been filed in illegal and cannot be sustained in the eye of law. 3. The learned counsel for the appellant relying upon the judgment of Hon'ble Supreme Court in the case of Balraj Taneja vs. Sunil Madan reported in AIR 1999 SC 3381 submitted that the decree deserves to be set aside and the matter deserves to be restored back to the learned Trial Court with a liberty to the defendant-appellant to filed written statement and then contest the suit. 4. By a detailed order, the Co-ordinate Bench of this Court noticing all these facts condoned the delay of 1574 days in filing the present appeal of the defendant-appellant. 5. Mr. J.L. Purohit appearing for the respondent opposed these submissions. 6. The Hon'ble Supreme Court in the case of Balraj Taneja (supra) has observed as under:- "Having regard to the provisions of Order 12 Rule 6; Order 5 Rule 8, specially proviso thereto as also Section 58 of the Evidence Act, the Court has not to act blindly upon the admission of a fact made by the defendant in his written statement nor the Court should 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 C.P.C. 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 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 facts to be proved' used in sub-rule (2) of 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. (Paras 28, 29) Therefore, in a suit for specific performance to plead readiness and willingness of the plaintiff to perform his part of the contract being a mandatory requirement, the Court, before passing judgment against defendant Order 8 Rule 10 has to scrutinise the facts set out in the plaint to find out whether said requirements, specially those indicated in Section 16 of the Specific Relief Act have been complied with or not. That apart, even if definition of judgment as set out in Section 2(9) of the Code would not be applicable to the judgment passed by the Delhi High Court in its original jurisdiction wherein the proceedings are regulated by the provisions of the Delhi High Court Act, 1966, the Delhi High Court is not absolved of its obligation to write a judgment as understood in common parlance. Even if the definition were not contained in Section 2(9) or the contents thereof were not indicated in Order 20 Rule 1(2) C.P.C., 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 of deciding the case one way or the other." 7. Perused the impugned judgment of the learned Trial Court dated 6.3.2003. 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 of deciding the case one way or the other." 7. Perused the impugned judgment of the learned Trial Court dated 6.3.2003. The judgment and decree does not assign any reason for decreeing the suit of the plaintiff and the plaintiff was not at all called upon by the learned Trial Court prove the averments made in the plaint. In view of the facts that real owner of the property in question was never served with the summons and she had not even instructed her counsel, this Court is inclined to accept the appeal of the appellant-defendant and set aside the judgment dated 6.3.2003 passed by the learned Trial Court. 8. Accordingly, this appeal is allowed and the judgment and decree dated 6.3.2003 for specific performance is set aside and the suit is restored back to the learned Trial Court for trial a fresh after giving a reasonable opportunity to the defendant-appellant Smt. Rukhi to file written statement and parties may lead their respective evidence. The trial may be expedited. No order as to costs.