Jharkhand High Court
Shyameshwar Dayal Singh vs Bhukhu Ghasi ? Bhukla Ghasi & on 9 May, 2014
Author: D. N. Upadhyay
Bench: D. N. Upadhyay
1 M.A. NO. 133 OF 2010
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Miscellaneous Appeal No. 133 of 2010
Shyameshwar Dayal Singh ... ... ... Appellant
-V e r s u s -
1. Bhukhu Ghasi @ Bhukla Ghasi
2. Siti Ghasi;
3. Shanti Ghasi. ... ... ... Respondents
CORAM: - HON'BLE MR. JUSTICE D. N. UPADHYAY
For the Appellant :Mr. Ayush Aditya, Advocate.
Mr. Shashank Shekhar, Advocate.
For the Respondents :Mr. Rajnish Kumar, Advocate.
Ms. Kumari Rashmi, Advocate.
C.A.V. On 30/04/2014 Pronounced On 09/05/2014
D. N. Upadhyay, J. This miscellaneous appeal has been filed against the Judgment
dated 31.03.2010, passed by Additional Judicial Commissioner, F.T.C. - X,
Ranchi in connection with Title Appeal No. 120/2007 whereby learned Additional
Judicial Commissioner has been pleased to set aside Judgment dated
21.06.2007, Decree signed on 27.06.2007 relating to Title Suit No. 71/2001, passed by 1st Additional Munsif, Ranchi and remanded the case for retrial.
2. The appellant has assailed the impugned Judgment on the ground that order of remand for retrial is highly erroneous and illegal and not sustainable in law. The learned appellate court has directed the trial court to recast the issues and give opportunity to the defendant no. 1 to adduce evidence though the defendant no. 1 had been debarred from filing written statement by order dated 29.11.2002, passed by the Trial Court. Thereafter, W.P.(C) No. 5051 of 2005 was preferred challenging the said order but the defendant no. 1 did not get favourable order and said writ petition stood dismissed.
3. It is contended since defendant no. 1 has been debarred from filing written statement then question of adducing evidence does not arise at all and the learned appellate court has erred in passing such order by which the defendant no. 1 has been allowed to adduce evidence. It is further submitted that the learned additional Judicial Commissioner should have distinguished the Judgment reported in 2007(1) JCR 454 [Shyam Murmu Vs. Raska Tudu] from the Judgment reported in (2008) 3 JCR 258 [Dayanand Bhadani Vs. Prabhat Kumari Bhadani] considering the facts of the case in hand and the former Judgment i.e. Shyam Murmu (Supra) ought to have been relied upon. The appellant has further relied on the Judgment reported in (1988) 4 SCC 619 [Modula India Vs. Kamakshya Singh Deo].
2 M.A. NO. 133 OF 20104. On the other hand counsel appearing for the respondents has submitted that learned Additional Judicial Commissioner has rightly remanded the case for retrial because issues were not properly framed. The defendant no. 1 was debarred from filing written statement and, therefore, he was not expected to make out any case in his favour and, therefore, issue nos. 5 and 6 have wrongly been framed. The learned Appellate Court has elaborately discussed the Judgment in the case of Dayanand Bhadani (Supra) in which all relevant Judgments including Judgment in the case of Modula India (Supra) relating to issues involved in this case, has been discussed by His Lordship. There is no merit in this appeal and therefore, the same is liable to be dismissed.
5. I have gone through the impugned Judgment as well as Judgments cited above. It is not disputed that defendant no. 1 was debarred from filing written statement by order dated 29.11.2002, passed by the trial court and the situation remained approved till disposal of the trial. If the defendant no. 1 has been debarred from filing written statement meaning thereby he has been debarred from creating any defence or any specific case in his favour. If it was so, the issue nos. 5 and 6 framed by the trial court were certainly ought not to have been framed and, therefore, the learned Additional Judicial Commissioner has rightly held that issues were not properly framed.
6. I have carefully gone through the Judgments reported in (2008) 3 JCR 258 [Dayanand Bhadani Vs. Prabhat Kumari Bhadani] and I find that His Lordship has taken pain to discuss most of the relevant Judgments relating to the issues involved. The remedy available to the plaintiff and procedure which is required to be adopted under Order 8 Rule 10 of CPC have been discussed in details by referring relevant Judgments. The final conclusion opined is that the defendant who has been debarred from filing written statement is not debarred from right to cross examine the witnesses of the plaintiff in order to disprove or damage or demolish the case of the plaintiff. His Lordship has gone to the extent of saying that such defendant shall be given liberty to adduce evidence, both oral and documentary, but for the purpose of challenging case of the plaintiff. In other words, it can be said that the defendant who has been debarred from filing written statement, has not lost right to adduce evidence to challenge case of the plaintiff to make it unbelievable.
The procedure laid down under Order Rule 10 CPC has elaborately been dealt with in the Judgment of Dayanand Bhadani (Supra) in which the case of Balraj Taneja and another v. Sunil Madan and another reported in (1999) 8 SCC 396, has been discussed. The relevant portion of Judgment in the case of Balraj Taneja (Supra) is as under:-
"14. This rule, namely Rule 10, was also amended by the Code of Civil Procedure (Amendment) Act, 1976 (Act 104 of 1976). Prior to its 3 M.A. NO. 133 OF 2010 amendment, it was held in a number of decisions that the rule can be invoked only in those situations where the court has required the defendant to file the written statement in terms of Rule 9 of Order 8. A few other High Courts had taken the view that this rule would be applicable even to those cases where a written statement was required to be filed under Order 8 Rule 1 CPC. The conflict of decisions has been set at rest by providing specifically under this rule that where a party from whom a written statement is required either under Rule 1 or Rule 9 of Order 8 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. Rule 10 thus governs both the situations where a written statement is required under Rule 1 of Order 8 as also where it has been demanded under Rule 9. In both the situations, if the written statement has not been filed by the defendant, it will be open to the court to pronounce judgment against him or make such order in relation to the suit as it thinks fit. It is to be noticed that if the written statement is not filed, the court is required to pronounce judgment against the defendant. The words "against him" are to be found in Rule 10 of Order 8 which obviously means that the judgment will be pronounced against the defendant. This rule also gives a discretion either to pronounce judgment against the defendant or "make such order in relation to the suit as it thinks fit". These words are of immense significance, inasmuch as they give a discretion to the court not to pronounce judgment against the defendant and instead pass such order as it may think fit in relation to the suit.
15. There are thus 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.
27. In view of the above, it is clear that the court, at no stage, can act blindly or mechanically. While enabling the court to pronounce judgment in a situation where no written statement is filed by the defendant, the court has also been given the discretion to pass such order as it may think fit as an alternative. This is also the position under Order 8 Rule 10 CPC where the court can either pronounce judgment against the defendant or pass such order as it may think fit.
29. As pointed out earlier, the court has not to act blindly upon the admission of a fact made by the defendant in his written statement nor should the court 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 4 M.A. NO. 133 OF 2010 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."
Thus, it is clear that in a case where the defendant has been debarred from filing written statement, has right to demolish the case of the plaintiff by cross examining the witnesses and also by extending the arguments. Considering all the pros and cons, all the relevant Judgments, it was held in the case of Dayanand Bhadani (Supra) in paragraph 17, which reads as under:-
"17. As noticed above, the procedural law designed to facilitate natural justice must be followed and, therefore, parties must be given opportunity to place their record to the extent permissible in law. In my opinion, therefore, the defendant-petitioner should be allowed to adduce evidence and to cross-examine the witnesses in order to demolish the case of the plaintiff. The impugned order, therefore, cannot be sustained in law."
7. The only illegality which I have noticed in the impugned Judgment is that the defendant who has been debarred from filing written statement should not be allowed to adduce evidence to make out a defence or any specific case in his favour and this connotation has not been expressed in clear terms in the impugned Judgment.
8. The learned Additional Judicial Commissioner in the concluding part of the Judgment has observed "The learned Court below is directed to recast the issues and give opportunity to defendant no. 1 to adduce evidence and to proceed with the trial in accordance with the provisions of law." which is not in consonance with opinion of this Court given in the Judgment of Dayanand Bhadani (Supra) and, therefore, I feel it desirable to correct that concluding part of the impugned Judgment to the extent the defendant no. 1 can be given opportunity to adduce evidence and cross examine the witness only to demolish the case of the plaintiff and the evidence so adduced shall not be considered for making out a defence or any specific case in favour of the defendant no. 1.
9. With the aforesaid observations and directions, this appeal stands dismissed. The trial court shall follow the view expressed by this Court, as indicated above.
(D. N. Upadhyay, J.) Jharkhand High Court, Ranchi Dated 09.05.2014 RC