Karnataka High Court
Basalingappa Chinnappa Goudar And Ors. vs Shantavva And Ors. on 9 August, 2001
Equivalent citations: ILR2002KAR260, 2001(6)KARLJ460
Author: N. Kumar
Bench: N. Kumar
ORDER
The Court
1. Petitioners are the defendants in the Court below. Plaintiff has filed a suit for the relief of partition and separate possession of her 1/12th share in the suit schedule property. Petitioners are defendants 1 to 7 in the suit. Defendants 1 to 7 have not filed their written statement. Therefore, the case was posted for evidence and the plaintiff was examined as P.W. 1. She has marked Exhibits P. 1 to P. 19, P. 20, P. 22 and P. 23 to 30, documents in support of her claim. After her examination-in-chief was over the aforesaid documents were marked, learned Counsel appearing for defendants 1 to 7 requested the Court to permit him to cross-examine P.W. 1. The said request was rejected by the Court below on the ground that defendants 1 to 7 have not filed written-statement.
In view of the language employed in Order 8, Rule 10 of the CPC especially the words in italics that, when the defendant fails to present the written statement called for by the Court, the Court shall pronounce the judgment against him or make such order in relation to the suit as it thinks fit and on pronouncement of such judgment, a decree shall be drawn up, the Court was of the opinion that the defendants have no right to cross-examine the plaintiff. It is against the said order the present revision is filed.
2. Respondents are duly served and they have remained unrepresented.
3. Therefore, the only point that arises for my consideration is whether the defendant who has not filed the written statement has no right to cross-examine the plaintiff.
4. Order 8, Rule 10 of the CPC provides for the consequences flowing from not filing the written statement. It says that, 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 an it thinks fit and on the pronouncement of such judgment, a decree shall be drawn up. A reading of the aforesaid provision makes it clear that when the defendant who is called upon to file the written statement fails to present the written statement two consequences would follow. One is the Court shall pronounce the judgment. If the Court were to adopt the said mode and pronounce the judgment forthwith there is no question of either the plaintiff leading evidence or defendant seeking permission to cross-examine, as for non-filing of the written statement judgment is pronounced then and there. If the Court were to adopt the second mode, namely make such other order as it deems fit then whether the defendant is prohibited from cross-examining the plaintiff. Though the Court has been given the power to pronounce judgment forthwith on the failure of the defendant to file the written statement it is not as if the Court is bound to follow the said procedure as the language of the said provision makes it clear it has option to make such order as it deems fit, namely, if the Court wants proof of allegation of the plaint it has every right to insist on the plaintiff to give proof of the allegation in the plaint notwithstanding the fact that the defendant has not filed any written statement. Because the Court wants to be satisfied before a decree is granted that the case pleaded by the plaintiff could be accepted. Once the Court adopting the second procedure, posts the case for plaintiffs evidence to find out the truth of the allegations made in the plaint to test the veracity of the allegations in the plaint made by the plaintiff two options are available. Court itself may cross-examine the plaintiff or permit the defendant to cross-examine as plaintiff, as he is better equipped to cross-examine, to get at the truth. If the defendant is able to show that the case of the plaintiff cannot be accepted, there cannot be a decree against him. In this regard it is useful to refer to a judgment of the Calcutta High Court in the case of Debendra Nath Dutt v. Satyabala Dasi and Ors., wherein it has been held.-
"Thus then there are two consequences of not entering appearance under the Rules. One is that the suit is liable to be heard ex parte and the other is that no written statement can be filed. In that context, I am not inclined to impose more punishment than those two so explicitly stated by the Rules. Therefore, I am of the opinion that a party subject to these handicaps imposed by the Rules can still appear under the Civil Procedure Code when the suit is called on for hearing from the undefended list, not only to cross-examine the witnesses of the plaintiff and demolish in such manner the plaintiffs case on evidence that the Court will not pass any decree in the plaintiffs favour but also to make such arguments and submissions on law and on such evidence as the plaintiff may have brought to the Court. These are, in my opinion, valuable rights under the Code which are not taken away by any Rules of the original side. .......... In my opinion filing of written statement is not the only way of defending a suit. A defendant in my judgment may ably and successfully defend a suit against him by cross-examination and arguments".
The aforesaid judgment has been approved by the Supreme Court in the case of Modula India v. Kamakshya Singh Deo, and has held as under.-
"It is a well-established proposition that no oral testimony can be considered satisfactory or valid unless it is tested by cross-examination. The mere statement of the plaintiffs witnesses cannot constitute the plaintiffs evidence in the case unless and until it is tested by cross-examination. The right of the defence to cross-examine the plaintiffs witnesses can, therefore, be looked upon not as a part of its own strategy of defence but rather as a requirement without which the plaintiffs evidence cannot be acted upon. Looked at from this point of view it should be possible to take the view that, though the defence of the tenant has been struck out, there is nothing in law to preclude him from demonstrating to the Court that the plaintiffs witnesses are not speaking the truth or that the evidence put forward by the plaintiff is not sufficient to fulfill the terms of the statute".
Further, it held.-
"We, therefore, think that the defendant should be allowed his right of cross-examination and arguments. But, we are equally clear that this right should be subject to certain important safeguards. The first of these is that the defendant cannot be allowed to lead his own evidence. None of the observations or decisions cited have gone to the extent of suggesting that, in spite of the fact that the defence has been struck off, the defendant can adduce evidence of his own or try to substantiate his own case".
5. Dealing with the language employed in Order 8, Rule 10 of the CPC this is what the Supreme Court had to say.-
"Again under Rule 10 when any party from whom a written statement is required fails to present the same 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 thinks fit". It will be seen that these rules are only permissive in nature. They enable the Court in an appropriate case to pronounce a decree straightaway on the basis of the plaint and the averments contained therein. Though the present language of Rule 10 says that the Court "shall" pronounce judgment against him, it is obvious from the language of the rule that there is still an option with the Court either to pronounce judgment on the basis of the plaint against the defendant or to make such other appropriate order as the Court may think fit. Therefore, there is nothing in these rules, which makes it mandatory for the Court to pass a decree in favour of the plaintiff straightaway because a written statement has not been filed".
Therefore, it becomes clear in a suit the defendant has the right to show that the case pleaded by the plaintiff is false or cannot be acted upon and in addition to that he can put forth his defence to defeat the claim of the plaintiff. By not filing the written statement he loses his right to put forth his defence to defeat the claim of the plaintiff only but he does not lose his right to demolish the case of the plaintiff by cross-examination. The defendant by cross-examination of the plaintiff and his witnesses can demolish the case of the plaintiff and also address arguments on the basis of the evidence led by the plaintiff, and also make submission on law and satisfy the Court that on the material on record, the plaintiffs case cannot be accepted and no decree can be passed in favour of the plaintiff.
6. However, it is made clear that the defendant would not be entitled to lead any evidence nor his cross-examination be permitted to travel beyond the very limited objective of pointing out the falsity or weakness of the plaintiffs case, and he be permitted to project his defence either directly or indirectly or in the form of suggestions to the plaintiffs witnesses.
7. Therefore, the Court below was in total error in refusing to permit the defendants to cross-examine the plaintiff notwithstanding the fact that they had not filed any written statement. As such the impugned order cannot be sustained. Accordingly, it is set aside. Hence, I pass the following order:
Civil revision petition is allowed. Impugned order is set aside. Defendants are permitted to cross-examine the plaintiff though they have not filed the written statement, to the extent indicated above.