Patna High Court
Bindeshwari Kamkar And Ors. vs Radha Tiwari And Ors. on 8 May, 1978
Equivalent citations: AIR1979PAT78, AIR 1979 PATNA 78, (1979) PAT LJR 99
ORDER Madan Mohan Prasad, J.
1. This application, in revision is directed against an order by which the Court below has refused to allow the petitioners to file a written statement on their failure to do so within the time allowed by the court.
2. It appears that the suit out of which the present application arises was filed on the 28th of April, 1976. Summonses were issued to the defendants for framing of issues fixing 31st of May 1976. On that date a petition for time was filed by the defendants. Still the court fixed 30th of June, 1976 awaiting service report of summonses issued. On the last mentioned date the defendants applied for time to file a written statement. The case was adjourned for this purpose to the 17th of Sept., 1976. Again there was a similar petition for time and the court again adjourned it to 7th of Jan., 1977 stating, however, that the defendants must file their written statement by that date failing which further time would not be granted. The defendants still did not file their written statement when the case was taken up on the 7th of Jan. 1977 and they again applied for time. The court rejected the application and ordered that the defendants shall be precluded from filing any written statement, but even in the absence of a written statement the defendants would be allowed to participate in the hearing of the case. It fixed 2nd of March, 1977 for the purpose. On that date the court ordered that since the defendants had been disallowed the right to file written statement, the hearing of the case may be fixed for 1st of May, 1977, but on that very date later the defendants filed their written statement and the court ordered the same to be kept on record. Hence this application directed against the order dated the 7th of Jan., 1977.
3. It may be mentioned further that on the very date the suit was filed a petition for ad interim injunction had also been filed for restraining the defendants from constructing a house on the lands in suit. The learned Munsif directed notices to issue in this respect to the defendants for showing cause by the 10th of May, 1976. On that date the defendants appeared and prayed for time to file the petition knowing cause. Time was granted till 18th of May, 1976. On similar prayer by the defendants, time was allowed till 27th May, 1976 and again on the defendants' prayer for time, 4th of June, 1976 was fixed. On the last mentioned date defendant No. 1 filed a show cause petition on behalf of the defendants. The hearing of the matter could not be done on account of lack of court's time as also at the prayer of the defendants for adjournment and the case was finally fixed for the 4th April, 1977. Meanwhile, however, the present application in revision was filed on the 3rd of Feb., 1977 and by an order dated 14th of March, 1977 further proceedings in the court below were stayed. As a result the injunction matter could not be beard.
4. The only point raised by the counsel for the petitioners is that the court had no jurisdiction to take away the right of the defendants to file written statement at or before the first hearing of the suit. It has been urged that in this case notice having been issued to the defendants for framing of issues, that was the "first hearing" within the meaning of Rule 1 of Order VIII of the Civil P, C. (hereinafter to be referred to as 'the Code') and as such the defendants had a right to file the written statement until the issues were actually framed and the right could not be taken away. Reliance has been placed on a decision of a learned single Judge of the Andhra Pradesh High Court in the case of Chikkula Chendraiah v. Tata Seetarammaiah reported in AIR 1961 Andh Pra 102. It has been further urged that a defendant is not bound to file a written statement in a case unless required by court and he may do so in the first case either on his own or if required by the court at or before the first hearing or within such time as the court may permit. In such circumstances it is said that the court had no jurisdiction to refuse to accept a written statement at or before the first hearing.
5. I would first read the relevant provisions, viz. Rules 1, 9 and 10 of Order VIII (as they stood prior to the amendment in 1976), They were as follows:--
Rule 1, "The defendant may, and, if so required by the court, shall, at or before the first hearing or within such time as the court may permit, present a written statement of his defence......".
Rule 9. "No pleading subsequent tc the written statement of a defendant other than by way of defence to 3 set off shall be presented except by the leave of the court and upon such terms as the Court thinks fit, but the court may at any time require a written statement or additional written statement from any of the parties and fix a time for presenting the same".
Rule 10. "Where any party from whom a written statement is so required fails to present the same within the time fixed by the court, the court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit."
6. I will now refer to the decision in relation to these provisions. In the case of Chikkula Chandraiah (AIR 1961 Andh Pra 102) (supra), a learned single Judge of the Andhra Pradesh High Court was faced with a somewhat similar question, The facts of that case were as follows. A party was not made originally defendant, later a petition was filed for impleading him and it was granted; the suit was thereafter put up for filing written statement. By the next order it was said that the aforesaid defendant in spite of many opportunities had failed to comply with the order of the court for submitting the written statement: hence, his right to file written statement was forfeited and the suit was ordered to be put up for framing of issue. Thereafter an application was filed for setting aside the above order but the same was rejected, because the Munsif believed that he was prohibited to entertain the written statement after the order of forfeiture passed earlier by the court. In these circumstances, the learned Judge relying upon Rule 1, Order VIII held as follows :
"The language is plain enough to concede the right to the defendant the option of filing the written statement at or before the 'first hearing' or with the permission of the court thereafter; but it is incumbent upon the defendant--for no option is given to him in such a case --to file the written statement into court when so ordered by the court. But even in the later contingency, it appears from the language of this rule the court cannot compel the filing of the written statement before the first hearing."
It was further observed :
"Moreover it might be possible for a defendant, where compliance with the order to file a written statement at or before the first hearing is rendered difficult, to obtain time and having obtained time and having so got the permission exercise his right to present a written statement of his defence. There is thus nothing in this rule which enables a court of first instance to pass an order forfeiting the right of the defendant to file a written statement even though the written statement has not been filed in spite of the orders of the court at or before the final hearing, for, it is apparent on a reading of this rule that the time for filing the written statement could be extended.
Further it is not as though the unavailing of opportunities by a defendant because the case underwent several adjournments that could be taken as the criterion for placing any embargo on the right of the defendant to file a written statement, but only the non-compliance with an order of the court and non-filing of the written statement where there is one such order at or before the first hearing that entails the necessity for obtaining permission for further time."
It was also held that the 'first hearing' means the date of framing the issues and, therefore, the defendant had right to file the written statement till that date, that when no order requiring the defendant to file the written statement had been made by the court in accordance with Rule 1 Order VIII the mere fact that there had been opportunities given for filing written statement, before the issues were framed, would not by itself preclude the defendant from exercising his right to file a written statement.
7. In the case of Binda Prasad v. United Bank of India (AIR 1961 Pat 152), a written statement has been filed after the settlement of issues and the question arose there whether it could be accepted. In this caw Raj Kishore Pd. J. held that the first hearing of the suit means the date of settlement of issues and that if the defendant does not present a written statement the court can insist that he shall, and, if on being required to do so, he fails to comply with the order, Rule 10 of Order VIII, which provides that the court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit, applies. The learned Judge further held that the penalty under Rule 10 applies only to some default of a party under Rule 9 and an order under Rule 10 cannot be passed when a defendant fails to file written statement under Rule 1. The learned Judge took the view that "a party to a suit, as such, is not bound to put in a written statement; if he does not do so, he is taken to admit the allegations in the plaint, but he is entitled to appear and submit any argument open to him on the plaint............" Thereafter the learned Judge went on to consider the question whether, as a rule the written statement filed after the settlement of issues should be rejected and answered it in the negative.
8. There is another decision of this court in Siai Sinha v. Shivadhari Sinha (AIR 1972 Pat 81) of Untwalia J. (as he then was). In that case the defendant in spite of service of summons had not appeared and had not filed any written statement for about three years, thereafter he had appeared and prayed for time to file written statement but this was refused and he was also not permitted to be present at and take part in the hearing of the suit. Against this order he had come up to this court. The learned Judge held that under Order VIII, Rule 1, the petitioner had to file a written statement at or before the first hearing which he did not do and, therefore, the order refusing permission to file written statement was correct. The learned Judge, however, held that the suit not having been fixed for ex parte hearing, the defendant had a right to take part in the hearing of the suit even in the absence of a written statement. The learned Judge observed that "if a defendant does not file a written statement it cannot be said that he has admitted all the facts pleaded by the plaintiff." He relied on a Bench decision in the case of J. B, Ross and Co. v. C. R. Scriven (AIR 1917 Cal 269 (2)). The decision in the case of Binda Prasad v. United Bank of India (AIR 1961 Pat 152) where the learned Judge had observed that if a party does not file written statement he is taken to admit the allegations in the plaint, was not considered.
9. There is another decision of a Bench of this court reported in the case of Smt. Ramsurat Devi v. Satraji Kuer (AIR 1975 Pat 168). In this case the learned Judge held that "non-filing of the written statement by the defendant .........would not amount to admission of all the facts pleaded in the plaint by the plaintiff." The decision in the case of Siai Sinha v. Shivadhari Sinha (supra) as also in the case of J. B. Ross and Co. (supra) were relied upon. Again it appears that the decision in the case of Binda Pd. v. United Bank of India (AIR 1961 Pat 152) (supra) was not brought to the notice of the learned Judges.
10. Another decision of this court, which may be referred to is in the case of Govind Ram Agrawalla v. Harsukhrai Doshi (1969 Pat LJR 65). In that case on the failure of the defendant to file written statement, the court had adjourned the suit for ex parte hearing and ultimately an ex parte decree had been passed. The defendant had then applied under Order IX, Rule 13 which application also was rejected. Thus he had come up in appeal. The learned Judges held that the order for ex parte hearing was not correct because it was not a case where the court had required the defendant to file a written statement under Rule 1 of order VIII and therefore it was not obligatory on him to do so. The learned Judge, however, observed that Rule 10 of Order VIII applied to both cases where a court required a defendant to file written statement either under Rule 1 or Rule 9, and that, where the court did not require him to do so. Rule 10 of Order VIII had no application. The learned Judges further held that where a defendant had failed to file a written statement, when not required by court, the suit should be posted for hearing and not for ex parte hearing and the defendant cannot be debarred from taking part in the hearing of the suit.
11. There are some other decisions of other High Courts, which may usefully be referred to. In the case of Ram Rakhan v. Govind Das (AIR 1945 All 352) the defendant had not filed a written statement on or before the date fixed for the filing thereof. The date fixed for framing issues was, however, a later date but at the end of the day fixed for filing of the written statement, the plaintiff had requested the court to proceed to decide the suit. The court passed an order on the application that it may be put up on the next date. On the next date the defendant did not appear and the evidence of the plaintiff was recorded ex parte and a decree was passed. The defendant filed an application to set aside the decree. The court rejected the application. Thus an appeal was filed before the High Court. The learned Judge held that "a defendant is not compelled to file a written statement unless he is definitely directed to do so by the court" and he can exercise that discretion at any time before the first hearing or up to some date which is fixed by the Court. The learned Judges held that the date of settlement of issues being subsequent, the defendant was not bound to file it at an earlier date and was entitled to exercise his discretion till the date of framing of issues. In the case of Kalloo v. Mt. Imaman (AIR 1949 All 445) a learned single Judge also held that the first hearing in a suit commences when the court looks into the plaint in order to formulate the points in controversy between the parties. In the case of Union of India v. Bhagwan Das (AIR 1976 Delhi 96), on the failure of the defendant to file a written statement within the time allowed by the court, the court had pronounced judgment against the defendant. The learned Judge held that Rule 10 of Order VIII does not apply to a case where the court has not required the defendant to file the written statement. The learned Judge also held that non-filing of the written statement does not amount to admission of the allegations contained in the plaint, as Rule 5 of Order VIII does not apply to such a case.
12. I would now refer to certain decisions which appear to be contrary to the views expressed above. In Vinayak Shreedhar Kulkarni v. Chintaman Vaman Kulkarni (AIR 1938 Bom 470), the defendant did not file a written statement and prayed for time, the prayer was rejected and the case was fixed for ex parte hearing. The learned Judges held that "a party is not bound to put in a written statement; if he does not do so, he is taken to admit the allegations in the plaint, but he is entitled to appear and submit any argument open to him on the plaint......" In an earlier case of that court Shriram Surajmal v. Shriram Jhunjhunwalla (AIR 1936 Bom 285), a Division Bench of that court also relying upon Rule 5, Order VIII, had held that where there is no pleading, there is no denial or non-admission on defendant's part and he is bound by all the allegations in the plaint. In this case the learned Judges had dissented from the decision of Calcutta High Court in the case of J. B. Ross and Co. (AIR 1917 Cal 269 (2)) (supra) to the effect that Order VIII, Rule 5, had no application to a case where there was no written statement at all. In another case Timber Pvt. Ltd. v. Chandu Lal (AIR 1964 J & K 58) it was held that "the court had ample power under Order VIII, Rule 10 of the Civil P. C. to pronounce judgment against the defendant when he failed to present a written statement in spite of the instructions of the court, or pass any other order which the court thought fit in relation to the suit."
13. It will thus appear that in view of Rule 1 of Order VIII (as it stood prior to amendment in 1976) it was held that the defendant was not bound to file a written statement unless specially required by the court to do so; that he had a right to file a written statement at or before the first hearing; that the first hearing, is the date fixed for framing of issues where summons issued is for framing of issues or the date of final hearing where the summons issued is for that purpose; that according to some decisions the provisions of Rule 10 of Order VIII do not apply to a case where the court does not require the defendant to file a written statement under the provisions of Rule 9, whereas according to other decisions Rule 10 applies even to a case where there is a failure to file a written statement when required by the court to do so under Rule 1 as well; that if the defendant failed to file a written statement when not required by the court to do so, his right to file the written statement could not be taken away before the date of first hearing; that in cases where no written statement is filed, when not required by the court to do so, the defendant has a right to appear and participate in the trial of the suit even in the absence of a written statement, though his participation may be to a limited extent. There is a conflict of decisions on the point as to whether in the absence of a written statement the defendant is supposed to be bound by all the facts pleaded by the plaintiff in his plaint. In most of the decisions referred to above it was also held that if the defendant has not filed the written statement on his own at or before the first hearing the suit should be fixed for hearing and not for ex parte hearing.
14. As I have already stated earlier, counsel for the petitioners placed great reliance on the decision in the case of Chikkula Chendraiah (AIR 1961 Andh Pra 102) (supra). I have, however, already shown that the decision was on a different set of facts inasmuch as in that case the order forfeiting the right of filing written statement was taken away much before the first date of hearing. The learned Judge was, therefore, not called upon to answer the question as to what would happen if the defendant did not file the written statement after the first day of hearing, namely, the date of framing the issues, within the time permitted by court. There are observations, however, quoted earlier which are relied upon by counsel for the petitioners in support of the argument that there is nothing in Rule 1 which enables a court to forfeit the right of filing a written statement except in cases where the court requires him to do so. With very great respect, I am not prepared to concur in the view. This is the solitary decision in which such an observation has been made. In the decision of this court in the case of Siai Sinha (AIR 1972 Pat 81) (supra) Untwalia, J. had held that the refusal by the court to permit a defendant who had not filed written statement within the time permitted by the court, was correct. True, no reasons have been given for the conclusion aforesaid. However, it seems to me that it is clear that the right of the defendant to file a written statement in a case where he is not required by the court to do so enures only until the first day of hearing. After that day it is open to the court to grant time for the same or refuse to do so. The right does not continue where the court refuses to extend the time. In my view, it is the inherent right of the court to regulate the procedure according to the Code. If the Code gives an option to the defendant to file such a written statement by a certain date, this option must be deemed to come to an end after that date and in such circumstances the defendant is at the mercy of the court. Therefore, the correct view in law according to me is that after this day of first hearing it is open to the court to grant extension of time for filing the written statement or not and it is the inherent right of the court either to grant such time or to refuse it. The right of filing the written statement can, therefore, be forfeited after the day of first hearing, though not before it. The mere fact that Rule 1 does not contain such a provision is of no importance for the simple reason, as I have said above, that the court has the inherent power to do so.
15. In the present case the defendant did not file the written statement within the time permitted by the court and the court, therefore, said that no further time would be granted and fixed the case for hearing; while doing so the court further said that the defendant would be entitled to take part in the proceedings of the suit even in the absence of the written statement. That is in accordance with the decisions of this court. Thus, in the present case the order does not suffer from any illegality.
16. In the result, I find that the court below had jurisdiction to pass the impugned order. There is thus no merit in this application and it is accordingly dismissed with costs.