Centre For Management Development vs Panayam Grama Panchayath on 7 June, 2011

[Cites 1, Cited by 3]

Kerala High Court

Centre For Management Development vs Panayam Grama Panchayath on 7 June, 2011

This appeal is against the decree and judgment dated 7.6.2011 in O.S.No.122 of 2006 of the Additional Sub Court, Kollam by the original defendant. The suit is one for recovery of money. The plaintiff is a grama panchayat, represented by its Secretary. The defendant, though it filed written statement, later on kept away from the court when the suit was listed for trial. It has resulted in an ex-parte decree and judgment against which this appeal is preferred.

2. Heard Smt.M.Hemalatha, learned counsel for the appellant and Sri.M.T.Sureshkumar, learned counsel for the respondent.

3. Going by the impugned judgment it is clear that the lower court has granted a decree, without going into the merits and demerits of the case and without even discussing the issues involved and the facts and evidence adduced. It has rendered a judgment stating that the plaintiff filed a proof R.F.A. No.694 of 2015 2 affidavit and got marked Exts.A1 to A8. It is too dangerous and adventurous to jump into a conclusion without having a discussion with respect to the pleading and evidence adduced in a case and also without having a discussion with respect to the probative value of the document and evidence adduced. It is also not clear or discernible from the impugned judgment, how and under what circumstances the lower court was convinced that the plaintiff's case has been proved. The judgment should reflect the case advanced by both the parties.

4. It is true that Rule 10 of Order VIII CPC permits the court to pronounce a judgment against the defendant or to make such order in relation to the suit when there is failure to file written statement as required under Rule 1 or Rule 9 within the time permitted or fixed by the court. Then the question would arise whether the lower court bound to pass a decree against the defendant under Rule 10 of Order VIII CPC invariably in all cases where the defendant is set ex parte. In the present case lower court has passed an ex parte decree against the defendant without discussing the pleading and evidence involved in the suit and the law which is applicable to the fact in issue, presumably under Rule 10 of Order VIII CPC. R.F.A. No.694 of 2015 3

5. Order VIII Rule 10 is relevant as to the power of court to decree a suit when the defendant remains ex parte. Order VIII Rule 10 is extracted below for reference.

"Rule 10. Procedure when party fails to present written statement called for by Court - Where any party from whom a written statement is required under rule 1 or rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up."

(emphasis supplied)

6. Rule 10 enables the court to pronounce a judgment against the defendant or to make such orders in relation to the suit as it think fit and to draw up a decree on pronouncement of judgment, when there is failure on the part of the defendant to submit his written statement within the time permitted or fixed by the court as required under Rule 1 or Rule 9 of Order VIII CPC. Needless to say that Rule 1 stands for submission of written statement and the time specified is 30 days. Proviso enables the court to extend the time up to 90 days from the date of service of summons. Rule 9 deals with the subsequent pleadings by way of additional written statement with the R.F.A. No.694 of 2015 4 leave of court other than by way of defence to set off or counter claim. Rule 10 shall not be misunderstood as the enabling provision mandating the court to pass a judgment against the defendant invariably in all cases. It is really procedural law in effect. It has to read along with Rule 5 of Order VIII CPC, which is extracted below for reference.

"Rule 5. Specific denial - [(1)] Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability; Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.

[(2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion require any such fact to be proved.

(3) In exercising its discretion under the proviso to sub-rule (1) or under sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader. (4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced.]" R.F.A. No.694 of 2015 5

(emphasis supplied)

7. Sub rule 1 of Rule 5 of Order VIII CPC deals with what amounts to admissions of fact in a pleading. What the rule says is that any allegation of fact must either be denied specifically or by necessary implication or there should be a statement that the fact is not admitted. The provisio to sub- rule 1 of Rule 5 says that even in such situation the court may in its discretion require any fact so admitted to be proved otherwise than by such admission. The proviso attached to Rule 5(1) of Order VIII CPC is really an exception to the general rule that the admitted fact need not be proved. The legislative intention is well explicit and clear by the incorporation of an exception to the general principle that the admitted fact need not be proved in the proviso attached to Rule 5(1) of Order VIII CPC. That would clearly show the duty cast on a court while dealing with a case which would fall under Order VIII Rule 5 CPC. The Rule of utmost caution incorporated in the proviso to Rule (5) (1) of Order VIII CPC to enable the court to exercise its discretion in the matter of proof, irrespective of the fact of admission, if any made, or caused to be made under Rule 5. So, the court is expected to R.F.A. No.694 of 2015 6 exercise its discretion while pronouncing the judgment by virtue of power under Rule 5 of Order VIII CPC so as to satisfy itself with respect to the probative value of document and evidence adduced by the plaintiff in support of the pleading in the plaint. It is not permissible to pronounce a judgment by simply receiving a proof affidavit and document without looking into its content, its probative value, nature of document, admissibility of document etc.

8. Further in sub-rule 2 to Rule 5 the power to exercise its discretion in requiring any such fact to be proved also incorporated besides what is mandated under sub rule 3 wherein the question of engagement of an Advocate or Pleader by the defendant also made as a factor to be looked into in exercising its discretion.

9. A joint reading of Rule 5 and Rule 10 of Order VIII CPC would show that the court is bound to follow the requirements which constitute Rule 5 while rendering a judgment or pronouncing a judgment under Rule 10 of Order VIII CPC.

10. It is brought to our notice that the written statement was filed in time. Nothing is mentioned in the impugned order R.F.A. No.694 of 2015 7 with respect to the written statement submitted or with respect to the question of any admission, denial of pleadings of the plaintiff either specifically or impliedly. No discussion is made with respect to any admission or exercise of discretion, or the nature of document produced or its admissibility. Further, in a case wherein the written statement was filed and thereafter the defendant remained ex parte, it is the duty of the court to look into the pleading raised in the written statement, so as to have an appreciation with respect to the requirement under Rule 5 of Order VIII CPC including the specific denial of pleading of plaintiff, if any, or admission, if any, thereof.

11. All these provisions were overlooked by the lower court while rendering a judgment in two lines stating that proof affidavit was filed and document marked as Exhibits A1 to A8. The judgment should reflect the pleading and evidence involved, the points or the issues to be adjudicated and its adjudication with the reasoning on consideration of factual and legal positions. The impugned judgment lacks in basic ingredients which constitute a valid judgment. It is not at all discernible or clear from the impugned judgment how and R.F.A. No.694 of 2015 8 under what circumstance such a conclusion and inference was arrived at by the lower court, hence liable to be intercepted by this court and we do so.

12. During the course of argument the learned counsel sought permission to file additional written statement in the trial court. We are of the view that the same can be considered by the trial court whenever such written statement is filed with leave application, if any required.

In the result, the appeal allowed in part. Decree and judgment of the lower court is set aside. The suit is remanded back to the lower court for fresh disposal in accordance with law. The parties shall appear before the lower court through counsel on 30.01.2017. No order as to costs.

P.N.RAVINDRAN (JUDGE) P. SOMARAJAN (JUDGE) Sl/DMR/-

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