Delhi High Court
International Airport Authority Of ... vs Arvind Khanna on 10 May, 1995
Equivalent citations: 1995IIAD(DELHI)549, 59(1995)DLT223, 1995(33)DRJ629, 1995RLR416
Author: D.K. Jain
Bench: M.J. Rao, D.K. Jain
JUDGMENT D.K. Jain, J.
(1) This appeal, under Section 10 of the Delhi High Court Act, 1966 read with Section 104 and Order 43 Rule 1(d) of the Code of Civil Procedure, is directed against the order dated 16 August 1993 of the learned Single Judge dismissing the appellant's application No.7158/93 (under Order 9 Rule 13 CPC) in Suit No.2069/92 for setting aside the decree dated 4 August 1993 made under order 8 Rule 10 Civil Procedure Code for default in not filing the written statement by the defendant - appellant herein.
(2) It appears that the plaintiff/respondent was engaged by the appellant as a contractor/agent for operation of electronic Pabx telephone exchange at t he Indira Gandhi International Airport New Delhi. The respondent had agreed to operate the Std pay phones installed at the said airport w.e.f. 6 January 1990. From 6 January 1990 to 14 April 1992 Mahanagar Telephone Nigam Limited raised a bill for the Std pay phone booths operated by the respondent at Rs. 1,58,00,691.00 , against which the respondent contractor is said to have deposited only a sum of Rs. 1,19,18,306.00 . The respondent filed a suit for recovery of Rs.22,73,930.50p against the appellant Along with costs and interest, being the alleged salary and supervision charges, profit share, security and bank guarantee of Rs.1 lakh, furnished by him to the appellant besides costs. Appearance was put in for the appellant during the suit proceedings on 15 October 1992 when a direction was made for the written statement being filed by the appellant within three weeks. It appears that t written statement was not filed within the stipulated time but was filed with counter claim, deficiently stamped, on 28 May 1993 Along with an Ia 6187/93 under Section 148 CPC. The counter-claim was for an amount of Rs. 16.49 lakhs together with interest. It was stated that the Court Fee on the claimed amount was deficient but could not be paid as sanction of the competent authority was in the process of being obtained. Extension of time for making good the deficiency in the Court Fee was sought for. This application was fixed for 14 July 1993. On that date counsel for the plaintiff/respondent sought time to look into the matter and the application was directed to be re-notified on 4 October 1993.
(3) Meanwhile Ia 6897/93 (Under Order 8 Rule 10 CPC) dated 3 August 1993 was filed by the plaintiff/respondent for passing a judgment in the suit against the appellant. This application was posted before the Court on 4 August 1993. Surprisingly the defendant's application (IA 6187/93), adjourned earlier to 4 October 1993, was, without an order for preponing the date, also shown in the cause list of 4 August 1993. On that date, noticing its mention in the cause list, the defendant's counsel appeared and defendant's application for extension of time in making good the deficiency in the Court Fee was dismissed; the written statement was directed not to be taken on record, having been filed after the expiry of 3 weeks given to the appellant for the purpose on 15 October 1992; the respondent's application under Order 8 Rule 10 Civil Procedure Code was allowed and the suit was decreed by the learned Single Judge, holding: "IA6897 of 1993 is an application under order Viii Rule 10 Civil Procedure Code ., which has been filed by the plaintiff, inasmuch as the defendant has failed to present the written statement within time fixed by the Court. The provisions of Order Viii Rule 10 Civil Procedure Code . say that the Court shall pronounce judgment against the defendant, or make such order in relation to suit, as it thinks fit. In view of the facts which have been stated while dealing with I.A. 6187 of 1993, above, I do not think there is any reason not to pronounce judgment against the defendant. Accordingly, I pronounce the judgment in terms of Order Viii Rule 10 Civil Procedure Code . against the defendant, as the instant application complies with the requirements of the aforesaid provisions. Ia is allowed. The suit of the plaintiff is decreed."
(4) Against the said order, dated 4 August 1993, the appellant herein preferred an application under Order 9 Rule 13 Cpc, inter alia, on the plea that the order dated 4 August 1993 was an ex parte judgment made without going into the merits of the case, no order under Order 8 Rule 10 Civil Procedure Code could be made when the written statement was already on record and in any case was not a judgment within the meaning of Section 2(9) CPC. The order be set aside; the parties be given opportunity to file replies to the applications filed by the other side and the matter be decided after hearing the parties. By the impugned order dated 16 August 1993, the learned Single Judge dismissed the application as not maintainable observing that he had difficulty in accepting the contention raised and held that the order dated 4 August 1993, made under Order 8 Rule 10 Cpc, was a judgment and there was no distinction in the term 'judgment' used in the two provisions viz., Section 2(9) and Order 8 Rule 10 CPC. The other grounds taken in the application under Order 9 Rule 13 Cpc, it appears, have not been considered.
(5) Before us, on behalf of the appellant, apart from the other grounds taken in application under Order 9 Rule 13 Cpc, not taken note of in the impugned order dated 16 August 1993, it was vehemently argued that the order dated 4 August 1993 was an ex parte judgment in the sense that the appellant had no notice of the respondent's application under Order 8 Rule 10 Cpc, which was listed for the first time before the Court on 4 August 1993, and without notice to the appellant and without affording an opportunity of filing a reply, the same could not have been disposed of. Since this was not done, the order dated 4 August 1993 was an ex parte order and, therefore, the application under Order 9 Rule 13 Civil Procedure Code was maintainable and should have been allowed. It was also urged that no reply to appellant's application under Section 148 Civil Procedure Code having been filed by the respondent, there was no contest to it and, therefore, time to make up deficiency in the Court Fee should have been extended, and in any case the written statement already filed, resisting the material averments in the plaint and contesting the suit, should have been taken note of while disposing of respondent's application under Order 8 Rule 10 CPC.
(6) On behalf of the respondent it was urged that the written statement not having been filed within the stipulated time and thus not taken on record, the Court had no option but to decree the suit as Rule 10 of Order 8 Civil Procedure Code clearly lays down that if a party fails to present a written statement within the time (permitted or fixed by the Court), the Court shall pronounce judgment against him. It was maintained that as such the judgment dated 4 August 1993 is deemed to have been passed on merits and not ex parte, the application under Order 9 Rule 13 Civil Procedure Code was not maintainable.
(7) We have considered the matter and are of the view that the provisions of Order 8 Rule 10 Civil Procedure Code are not mandatory in the sense giving no option to the Court except to pass a judgment in favor of the plaintiff. The words in Rule 10 "or make such order in relation to the suit as it thinks fit" take away any such mandatory obligation on the Court derived from the use of the word "shall" preceding the words "pronounce judgment". The Court has to comprehend the facts and circumstances of each case and consider the plaintiff's case set up in the plaint and the documents, if any, attached therewith and see if the case is made out in favor of the plaintiff. In a given case, the Court after considering it all may still call upon the plaintiff to substantiate his case in the plaint. If a written statement is not filed, Rule 10 of Order 8 Civil Procedure Code does not postulate a judgment to be pronounced and decree passed automatically or mechanically. The judgment pronounced under Order 8 Rule 10 Civil Procedure Code should indicate that the Court has applied its mind to the merits of the case before decreeing the suit.
(8) In the instant case, the written statement Along with an application, Ia 6187/93(under Section 148 CPC), was on record prior to consideration of plaintiff/respondent's application under Order 8 Rule 10 CPC. The plaintiff/respondent had due notice of it and had infact on 14 July 1993 taken time to look into it when the hearing of the said application was adjourned to 4 October 1993. Since the order dated 4 August 1993 was passed ignoring the written statement only on a technical plea that "no application for condensation of delay in filing the written statement has been filed", we feel that the order dated 4 August 1993 was in the nature of an ex parte order and thus an application under Order 9 Rule 13 Cpc, for its recall was competent.
(9) In the view we have taken, we are supported by the decision of the Madras High Court in N.Nayaraman v. M/s Glaxo Laboratories India Ltd, , ÿholding that the decree passed under Order 8 Rule 10 Civil Procedure Code for defendant's default in filing the written statement, without any judgment on merit, is an ex parte decree, falling within the ambit of Order 9 Rule 13 CPC. This judgment has also been noticed in a Bench decision of this Court in Gujrat Coop. Oil Seeds Fed. v. Ramesh Kanta, 1994 R.L.R.(DB) 481, to which one of us (the Chief Justice) was a party.
(10) For the foregoing reasons we allow the appeal, set aside the impugned order dated 16 August 1993 and restore the application No.7158/93 (under Order 9 Rule 13 CPC) to the file of Suit No.2069/92 for disposal in accordance with law. Any observations made herein on the merits of application under Order 9 Rule 13 Civil Procedure Code are solely for disposal of this appeal.
(11) There will, however, be no order as to costs.