Jammu & Kashmir High Court
Alson Motors vs Sh. Rajesh Kumar on 4 May, 1992
Equivalent citations: AIR 1993 JAMMU AND KASHMIR 12, 1993 SRI LJ 33, 1992 KASH LJ 261, (1994) 1 CIVILCOURTC 187, (1993) 2 CURCC 713, (1994) 1 CURLJ(CCR) 424
JUDGMENT A.M. Mir, J.
1. This Ist appeal is directed against the judgment and decree passed by District Judge, Jammu on 31-3-1983 whereby the Court while closing the right of defendant to file written statement has passed adecree in terms of the prayer made in the plaint.
2. The plaintiffs suit was for declaration of his being an allottee in possession of the suit land and also for grant of permanent injunction restraining the defendant from dispossessing the plaintiff from the said land in any manner whatsoever. Defendant's counsel filed his power of attorney on 17-12-1982. On two subsequent dates i.e. 27-12-1982 and 27-1-1983, counsel for the defendant sought adjournments for filing of his written statement which were granted. Later, on 26-2-1983 and 11-3-1983 also the written statement was not filed and adjournments sought. On both these dates adjournments were granted subject to payment of Rs. fifty and Rs. one hundred as costs respectively. On 30-3-1983 also neither the costs were paid nor written statement was filed. That being so the Court proceeded in terms of Order VIII, Rule 10 of CPC hereinafter called 'the Code' and after striking the defence, decreed the suit. The trial Court has while passing this order held, that while doing so, it proceeded in terms of Order XVII, Rule 3 of the Code.
3. In the event of defendant's failure to present his written statement for five consecutive dates as shown above, the Court had no alternative, but to proceed in terms of Order VIII, Rule 10 of CPC. Needless to mention that under Order VIII, Rule 1, the defendant is expected to present written statement on the first hearing. Court has shown sufficient indulgence in granting adjournments and even then the written statement was not filed. So the Court was justified in proceeding under Order VIII, Rule 10. Order XVII, Rule 3 of the Code relates to a situation where a party fails to produce evidence or cause attendance of his witnesses or to perform any other act necessary for the further progress of the suit. Let it be observed in the first instance that it is Order VIII, Rule 10 which would apply in the instant case and not Order XVII Rule 3 of the Code.
4. A bird's eye view of this provision reveals that the Legislature in its wisdom has while proceeding in terms of this provision left the following two options open with the court:
a) to pronounce the judgment against the defendant:
or
b) makes such order in relation to the suit as it thinks fit.
5. The provision of an option on its face makes it clear that passing of the judgment against the defendant is not the ony course to be adopted. Had the Legislature not provided for the second option i.e., one described under para 4(b) above, it would be presumed that the defendant had admitted the claim of the plaintiff and the Court would not be called upon to adjudge the case of the plaintiff. That being not so, the provision made for an alternative course leads us to the conclusion that the Court has to apply its mind to the averments of the plaint and adjudge the same on merits. This view seems to be more logical and just, because even in the event of written statement not being on file, the claims made in the plaint must be genuine and should stand the test of proof as required under law. Non-filing of a written statement does not in any case amount to admission of plaintiffs assertion by the defendant. It on the other hand allows the Court to proceed ahead in absence of a defence on the part of defendant. The latter is definitely visited with adverse consequences by his omission to file written statement, but such an omission can in no case be construed to be an admission, and cannot ipso facto entitle the plaintiff to get a decree without any proof of his case. There are some questions to which the Court on its own has to address itself, these may include the following:--
i) Does the Court have jurisdiction?
ii) Is the valuation and Court-fee proper?
iii) Is the suit within the period of limitation?
iv) Is there any statutory bar to the maintainability of the suit?
It is after satisfying itself on all these counts that the Court will proceed to hear the case on its merits.
6. The question whether or not non-filing of written statement would amount to an admission on the part of defendant came up for consideration before a Division bench of Patna High Court while deciding the case titled Smt. Ram Surat Devi v. Smt. Satraji Kour reported in AIR 1975 Patna 168. Patna High Court while relying upon its earlier decision reported in AIR 1972 Patna 81 and also on AIR 1917 Cal 269(2) answered the question in negative and held that such, contention was not tenable and non-filing of the written statement by the defendant would not amount to admission of all the facts pleaded by the plaintiff in his plaint.
7. Where a statute leaves an option with the Court it must be presumed that the Legislature has while reposing confidence Iii the judicial wisdom of the Court deliberately left the Court free to choose that course which befits a case. In such an eventuality, it is for the Court to see that while exercising this discretion, ends of justice are served and the truth of the matter projected before it is revealed. Judicial discretion is not a wild power. It must be exercised in accordance with the norms of justice and fair play. Rules of procedure are not an end in themselves, They are on the other hand, hand-maids in the hands of the Courts to advance the cause of Justice.
8. In the present case, at the face of it, the plaint seeks declaration on the basis of allotment and wants to forestall any bid on the part of defendant for eviction of the suit property. The documents enclosed by the plaintiff with his plaint are some photostat copies of Form-FC-2. I have gone through 16 leaves of Forms FC-2. The others are photostat copies of some receipts. The trial court has while passing the judgment relied upon these documents without going to the provisions of law for admitting of documents to documents to evidence. In civil cases, proof by documentary evidence which is of secondary nature is an oft-beaten concept of Law of Evidence. The trial court, after giving a go-bye to these provisions of law, has wrongly relied upon the photostat copies which bear no seal and can in no case inspire confidence. Besides this the court has not taken into account any of the question spelled out in para 5 above.
9. Mr. S.S. Nanda learned counsel for the respondent-plaintiff has at the outset of his arguments raised an objection that the appeal is not maintainable because the same is signed by a person who is not competent to do so. He has taken me through affidavit filed by the appellant in support of the appeal whereby Alson Motors has been admitted to be a firm. The pleadings on behalf of the firm could therefore, be signed only by a partner. Here the appeal has been signed by Mr. S.P. Gupta learned Advocate for the appellant, who has appeared before the trial court on behalf of the appellant-defendant also. Mr. Nanda wanted to lay stress on the fact that power of attorney given to the Advocate was not signed by a competent person. I have examined the power of attorney of the trial court. I do not find myself in agreement with Mr. Nanda because it will be too unsafe to accept this proposition, because it is not shown by any evidence that the signatures on the power of attorney are by an incompetent person.
10. Yet there is another aspect of the case. The trial court has hustled through the case and forgotten that the judgment in this case like other cases has to conform to the provisions of Order XX of the Code. The basis on which the judgment has been passed has not been discussed. The plaintiff seeks permanent injunction from eviction of the land in whatsoever manner. In my opinion, the relief sought in such a blanket manner includes eviction in due course of law, also. The trial court grants decree as prayed for. The court has thus closed the doors of the defendant from taking eviction proceedings under law also. This feature of the case also cannot be lost sight of.
11. On the foregoing analogy, I find the judgment and decree of trial court to be inconsistent with the provisions of law and, therefore, while accepting this appeal set aside the same. The case is remanded back to the trial court with the direction to proceed with the case in the light of above observations. After the defence of the defendant having been closed, the trial court shall hear the parties and pass appropriate orders. This includes leading of proof by the plaintiff and rebuttal by the defendant. Parties are directed to appear before the trial court on 25-5-1992. However, till disposal of the matter by the trial court, the parties will maintain status quo.
The parties are left to bear their own costs.