Karnataka High Court
Mallayya vs Totayya on 30 January, 1989
Equivalent citations: ILR1989KAR807, 1989(1)KARLJ225
JUDGMENT
Chandrakantaraj Urs, J
1. This is a defendant's appeal against the Judgment and decree dated 30-6-1988 in Original Suit No. 22 of 1987 on the file of the Civil Judge, Gadag.
2. The undisputed facts, which are set out in the course of the Judgment under appeal may be stated briefly and they are as follows:
In the course of this Judgment, we will refer to the parties by the ranks assigned to them in the trial Court.
The plaintiff filed a suit for declaration of title and possession of suit land. The suit was registered and defendant was served with notices. He entered appearance through Counsel on 7-8-1987. On 7-9-1987, 9-10-1987, 9-11-1987 and 4-12-1987 the suit was adjourned for the purpose of filing written statement. But on 4-12-1987 Counsel for defendant retired from the case and a new Counsel appeared for the defendant and sought further time to file the written statement. The case was adjourned to 22-1-1988. On 22-1-1988, no written statement was filed and that fact was recorded in the order sheet. Thereafterwards, the case was adjourned for evidence. On 12-2-1988, 26-2-1988, 17-6-1988 and 29-6-1988 presumably the case was adjourned for the evidence of the plaintiff. However, on the last mentioned date, the Counsel for the plaintiff appears to have induced the Court to proceed to pass Judgment and decree in favour of the plaintiff in terms of Order VIII Rule 10 CPC as no written statement had been filed. Arguments were heard and the suit was posted for Judgment on 13-6-1988. It was before Judgment and after it was reserved for Judgment, the defendant's Counsel filed an application under Order IX Rule 9 read with Section 151 of the Code of Civil Procedure to set aside the order "W.S. not filed" recorded on 22-1-1988. But that application came to be dismissed as the plaintiff's Counsel placed reliance on the ruling of the Supreme Court in the case of ARJUNASINGH v. MAHENDRA KUMAR . Therefore, the Judgment was pronounced decreeing the suit on 30-6-1988.
3. Mr. Adi, learned Counsel for the appellant, before us contends that nothing in the language of Rule 10 of Order VIII is suggestive that a suit may be decreed without proof of the plaint allegations. He has relied upon certain decisions of the Supreme Court to support that contention. Therefore, the only question that falls for our determination in this appeal is whether the trial Court was correct in proceeding to pass the Judgment and decree without proof of plaint allegations i.e., without recording any evidence for the plaintiff, but acting on the documents filed along with the plaint, without proof of those, documents, without those documents being received in evidence in accordance with the procedure laid down for receipt of evidence by Civil Courts during or in the course of trial?
Before examining the decided cases of the Supreme Court relied upon by Mr. Adi, it would be useful to extract Rule 10 of Order VIII of the Code of Civil Procedure, which is as follows:
VIII. 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.
The language employed after the 1976 amendment clearly demonstrates that the old law that in a suit in which summons to the defendant was issued only for settlement of issues and the Court could not, in the absence of the appearance of the defendant or contest by defendant, proceed to pass Judgment on the very date indicated in the summons for appearance, has been put an end to and the Court is empowered to proceed to pass a decree on the very date on which the defendant falls to perform an act, which is required to be performed i.e., enter his defence in writing. Beyond that, it does not make any other change, in our view.
This question fell for consideration before a Division Bench of this Court in the case of STATE OF KARNATAKA v. HEMRAJ ACHALCHAND . in the said case, the defendant State of Karnataka failed to appear on the date that was set down for settlement of issues, namely, 17-1-1974. In that position, the Court proceeded to note the following in the order sheet.
"Defendant absent. Placed ex parte. Suit decreed as prayed for."
On appeal, a Division Bench or this Court speaking through Venkatachaliah, J., as he then was in this Court (now a Judge of the Supreme Court) expressed himself for the Bench in the following manner:
"The expression 'Judgment' in Rule 5(2) and Rule 10 of Order 8 has the same connection as it has in its definition in Section 2(9) CPC. A 'Judgment' means 'the statement given by the Judge of the grounds of a decree or order.' The power of the Court to require any fact, which must otherwise be taken to have been admitted by non-traverse to be proved otherwise than by such deemed admission, itself implies and carries with it the need for an application of the mind to all circumstances relevant to the issue including the one referred to in "sub-rule (3). Such application of the mind must be manifest from the record of the proceedings. It may, indeed, happen in a conceivable case that if all the facts contained in the plaint are taken to be admitted even then, the plaintiff may not be entitled, in law, to the relief he claims. The Court must apply its mind and make it manifest that it has done so.
4. The Court need not write an elaborate Judgment. There can, in the very nature of things, be no hard and fast rule, valid for all occasions, prescribing what document, to be eligible to be called a 'Judgment' in cases where defendant does not file a pleading and where the Court proceeds to pronounce a 'Judgment' on the basis of facts contained in the plaint, must contain. It must necessarily depend on the facts and circumstances of each case. However, there are certain minimal essentials inherent in the idea of a 'Judgment1 as defined in Section 2(9) CPC. This much at least, it must disclose; that Judge has applied his mind to the nature of the suit-claim and to the aspect whether, it the facts contained in the plaint are taken to be admitted, the suit-claim is entitled to succeed. This is apart from cases where" in the circumstances. a Judge feels the need to call for proof of facts independently of the admission by non-traverse."
and allowed the appeal for want of application of mind by the Court below.
While we certainly cannot disagree with the conclusions reached by the learned Judges, we have no doubt that nothing in the language employed in Rule 10 of Order VIII CPC does away with the requirements of proof of the plaint allegations despite implied admission by non-dental either while expressly traversing the plaint allegations or where the defendant is placed ex parte or where the defendant has not filed pleadings within the prescribed time in terms of Rule 9 of Order VIII CPC.
5. The Supreme Court had occasion to consider the same question in the case of MODULA INDIA v. KAMAKSHYA SINGH DEO . In the said case, the provisions of West Bengal Premises Tenancy Act, 1956 fell for consideration. The questions formulated by the Hon'ble Supreme Court itself was such, which called for the examination of nature and scope of the rights available to a defendant, whose defence had been struck off in the context of certain provisions of West Bengal Premises Tenancy Act, 1956.
A Full Bench of the Calcutta High Court by a majority of two to one had taken the view that the defendant in a suit for, eviction cannot have the right of cross-examination excepting on the point of notice under Section 36 of the West Bengal Premises Tenancy Act, 1956 when defence had beer struck out under subsection (3) of Section 17 of the said Act. We may briefly state the said Sub-section (3) of Section 17 did no more than deny the right of defence to the tenant, who was in arrears of rent. After exhaustively discussing the provisions of the said West Bengal Premises Tenancy Act and earlier cases of the Supreme Court and the High Court of Calcutta on the subject, the Supreme Court observed as follows:
"12 ... ... ... ...
(d) ... ... ... ...
We have considered the contentions urged on behalf of both the parties and the respective view points of the two lines of decisions of the High Court. We have also perused the decisions of this Court to which reference has been made. Though none of them is a direct decision on the issue before us, the observations made, in so far as they enunciate general principles and relate to analogous statutory provisions are most helpful and instructive. After giving careful thought to all the aspects, we have come to the conclusion that the view expressed in the case under appeal by Ramendra Mohan Dutta, Acting Chief Justice, is preferable to the view taken by the other two learned Judges. It is a more liberal and equitable view and also one consistent with the requirements of justice in such cases. We proceed now to set out the reasons for our conclusion.
... ... ... ...
To us it appears that the basic principles that where a plaintiff comes to the Court he must prove his case should not be whittled down even in a case where no defendant appears. It will at once be clear that to say that the Court can only do this by looking the plaintiff 's evidence and pleadings supplemented by such question as the Court may consider necessary and to completely eliminate any type of assistance from the defendant in this task will place the Court under a great handicap in discovering the truth or otherwise of the plaintiff's statements. For after all, the Court on its own motion, can do very little to ascertain the truth or otherwise of the plaintiff's averments and it is only the opposite party that will be more familiar with the detailed facts of a particular case and that can assist the Court in pointing out defects, weaknesses, errors and inconsistencies of- the plaintiff's case.
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.
For the above reasons, we agree with the view of Ramendra Mohan Datta, ACJ., that even in a case where the defence against delivery of possession of a tenant is struck off under Section 17(4) of the Act, the defendant, subject to the exercise of an appropriate discretion by the Court on the facts of a particular case, would generally be entitled.
(a) to cross-examine the plaintiff's witnesses, and
(b) to address argument on the basis of the plaintiff's case.
We would like to make, it clear that the defendant would not be entitled to lead any evidence of his own nor can his cross-examination be permitted to travel beyond the very limited objective of pointing out the falsity or weaknesses of the plaintiff's case. In no circumstances, should the cross-examination be permitted to travel beyond this legitimate scope and to convert itself virtually into a presentation of the defendant's case either directly or in the form of suggestions put to the plaintiff's witnesses.
... ... ... ..."
Therefore, on the facts of the present case, we should have no hesitation to come to the conclusion that the Judgment and decree under appeal are liable to be set aside and the matter remitted to the trial Court to be proceeded further from the stage at which it recorded that written statement was not filed, in accordance with law.
6. In the result, the appeal is allowed to the extent indicated above. The matter is remitted with a direction that the trial Court should proceed to examine the plaintiff or his witnesses in support of the plaint allegations and if the defendant desires to cross-examine that witness, he shall be permitted to do so in the light of the decision of the Supreme Court relied upon by us and subject to the limitations imposed by the Supreme Court on the scope of cross-examination.
Order accordingly.