Delhi High Court
Union Of India (Uoi) vs Late Shri Ram Prakash Juneja (Deceased) ... on 2 March, 2007
Equivalent citations: AIR2007DELHI164, AIR 2007 DELHI 164, 2007 (5) ABR (NOC) 743 (DEL), 2007 (3) AJHAR (NOC) 983 (DEL), 2007 A I H C (NOC) 415 (DEL)
Author: J.M. Malik
Bench: J.M. Malik
JUDGMENT J.M. Malik, J.
1. The question involved in this second appeal is that if a written statement is not filed under Order 8 Rule 10 CPC, does it postulate a judgment to be pronounced and decree passed automatically and mechanically. The plaintiff had filed a suit for declaration, injunction and consequential relief before the Trial Court on 27.11.1980 along with application under Order 39 Rules 1 and 2 CPC. The defendants were served on 09.02.1981. The defendants were directed to file the written statement on various dates i.e. on 12.03.1981, 20.04.1981, 05.05.1981 and 06.07.1981. The order dated 05.05.1981 was got signed from Ms. Dhaneshwari, counsel for the appellant/defendant. One more opportunity was granted for 10.08.1981. On 10.08.1981 again, written statement was not filed. Consequently, the Trial Court passed the decree in favor of the plaintiff under Order 8 Rule 10 CPC, to the extent that the plaintiff/respondent is entitled to the post of Assistant Engineer Class II on the scale of the said post with all other attending benefits and seniority of the said post since 1977. He was further held entitled to the grade of Rs. 840/- to Rs. 1,040/- from December 1979 when person junior to him were given that grade. Aggrieved by this order, the appeal was preferred before the First Appellate Court. The First Appellate Court dismissed the appeal with costs holding that Order 8 Rule 10 was rightly invoked by the trial court.
2. Thereafter, the instant second appeal was preferred. The following substantial question of law was formulated by this Court on 11.01.1983:
(1) Whether in the facts and circumstances of the case the decree under Order 8 Rule 10 of the Code of Civil Procedure is in consonance with law
3. I have heard the counsel for the appellant. None has appeared on behalf of the respondent/plaintiff. The counsel for the appellant/defendant made only one submission that one more opportunity should be granted to the defendant to file the written statement.
4. It was the duty of the court to assess the pros and cons of the case and pass the orders accordingly on merits of the case. In the instant case no reference was made to the pleadings or documents filed by the plaintiff. As a matter of fact, the plaintiff/respondent should have been called upon to prove his case as per law. Opportunity should have been granted to him to adduce evidence if necessary. In that eventuality, the court could have dismissed the suit as well. The judgment pronounced under Order 8 Rule 10 CPC should indicate that the Court has applied its mind to the merits of the case before decreeing the case. The said judgment must satisfy the requirements of Section 2(9) CPC and the Court should go into the case and pronounce its judgment upon the facts, so far as they were before it. A mere statement that the suit of the plaintiff is decreed under Order 8 Rule 10 CPC cannot be sustained. The order passed by the Apex Court in this context fully dovetails with the observations made above.
7. In Balraj Taneja and Anr. v. Sunil Madan and Anr. , it was held:
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 the Court should 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 favor of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of 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 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 the 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.
8. In Relaxo Rubber Limited and Anr. v. Selection Footwear and Anr. , it was held:
3. Keeping in perspective the fact that atleast four opportunities for filing Written Statement have not been availed of by the Defendants I feel this is a fit case for invoking the provisions of Order 8, Rule 10. However, since no defense has come forward, it would be, to my mind, the duty of the Court to consider the correctness of the Plaintiffs case. For this reason the plaint as well as documents filed along with it were perused and arguments were heard on behalf of Plaintiffs.
9. In Syed Ismail and Anr. v. Smt. Shamshia Begum and Anr. , it was held:
3. The impugned order does not disclose the nature of pleading placed by the plaintiff and whether there is prima facie material to grant a decree in his favor. A judgment in favor of plaintiff is not automatic. The Court has to consider the case of the plaintiff and grant a decree in his favor. The learned trial Judge has not referred to the pleadings of the plaintiff and the documents produced by him to substantiate even a prima facie case for grant of a decree in his favor. Therefore the judgment and decree in favor of the plaintiff is not automatic on failure of the opposite party to put his defense.
The Court can grant a judgment in favor of the party only upon consideration of the case of the plaintiff including appreciation of pleadings and evidence. Similar view was taken in Alson Motors v. Sh. Rajesh Kumar AIR 1993 Jammu and Kashmir 12.
10. In the light of the discussion, I hereby remand the case before the Trial Court. Trial Court is directed to decide the case as per directions given above. The learned Counsel for the appellant vehemently argued that one more opportunity should be granted to the appellant to file written statement. I find no force in this argument. The order passed by lower courts under Order 8, Rule 10 CPC is not being disturbed, meaning thereby that permission to appellant to file written statement at this stage is hereby declined. During the argument, it was brought to my notice that the respondent/plaintiff has died. Notice of appeal was issued to his LR Sandeep Batra but he did not appear despite service. However, in the interest of justice, Trial Court is directed to serve a fresh notice upon Sandeep Batra before proceeding further in this case. Sandeep Batra be given an opportunity of being heard. The appellant is directed to appear before the Trial Court on 20.03.2007.
11. The appeal stands disposed of. Copy of this order be sent to the Trial Court forthwith.