Mithaiya vs Ramjit And Another
2013 Latest Caselaw 1642 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 34
 
Case :- SECOND APPEAL No. - 498 of 2013
 
Appellant :- Mithaiya
 
Respondent :- Ramjit And Another
 
Appellant Counsel :- R.C.Singh
 
Respondent Counsel :- H.S.N. Tripathi,P.S. Tripathi
 

 
Hon'ble Sudhir Agarwal,J.

1. Heard Sri R.C. Singh, learned counsel for the appellant and Sri H.S.N. Tripathi, learned counsel appearing for respondents.

2. The plaintiff's Original Suit No. 2078 of 1996 proceeded ex parte and decreed by Trial Court vide judgment and decree dated 27.05.2000, whereagainst the defendants-respondents instituted Civil Appeal No. 15 of 2000 which has been allowed by Lower Appellate Court observing that Trial Court did not discuss the matter on merits. The Lower Appellate Court while allowing appeal not only has set aside Trial Court's judgment but the suit has also been dismissed. Neither it has gone into the merits of the case nor has remanded the same to Trial Court permitting it to look into merits and, therefore, virtually the impugned appellate judgment has resulted in dismissal of suit without there being any decision on merits of the case.

3. It is no doubt true that even if no written statement is filed and the defendants have not contested the matter yet the plaintiff is not entitled for decree of suit inasmuch as he is under an obligation to prove his case and only then he can be granted relief and not otherwise.

4. Under Order VIII Rule 10 C.P.C. the Court has been enabled to proceed to deliver the judgment where defendants or one of several defendants have chosen not to contest the suit by filing written statement but it does not mean that plaintiff is absolved from his obligation to prove the case. The procedure prescribed therein is discretionary. In the context of Order VIII Rule 10 C.P.C. the Apex Court has considered the matter in Balraj Taneja & Anr. Vs. Sunil Madan & Anr., (1999) 8 SCC 396 and observed:

"30. 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 favour 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 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."

5. The above quote in Balraj Taneja & Anr. (supra), has been followed recently in C.N.Ramappa Gowda Vs. C.C. Chandregowda (D) by L.Rs. & Anr., AIR 2012 SC 2528 wherein also it has been held that Court is duty bound to adjudicate even in the absence of complete pleadings or in absence of pleadings of only one party. In para 14 of the judgment, the court said that effect of non-filing of written statement and proceeding to try the suit is clearly to expedite disposal of the suit. It is not penal in nature wherein the defendant has to be penalised for non filing of written statement by trying the suit in a mechanical manner by passing a decree. Apex Court reiterated its earlier observations in following words:

"....We wish to reiterate that in a case where written statement has not been filed, the Court should be a little more cautious in proceeding under Order 8 Rule 10 Code of Civil Procedure and before passing a judgement, it must ensure that even if the facts set out in the plaint are treated to have been admitted, a judgement and decree could not possibly be passed without requiring him to prove the fact pleaded in the plaint. It is only when the Court for recorded reasons is fully satisfied that there is no fact which needs to be proved at the instance of the Plaintiff in view of the deemed admission by the Defendant, the Court can conveniently pass a judgement and decree 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 arising from the plaint itself giving rise to two versions, it would not be safe for the Court to record an ex-parte judgement without directing the Plaintiff to prove the facts so as to settle the factual controversy. In that event, the ex-parte judgement although may appear to have decided the suit expeditiously, it ultimately gives rise to several layers of appeal after appeal which ultimately compounds the delay in finally disposing of the suit giving rise to multiplicity of proceeding which hardly promotes the cause of speedy trial. However, if the Court is clearly of the view that the Plaintiff's case even without any evidence is prima facie unimpeachable and the Defendant's approach is clearly a dilatory tactic to delay the passing of a decree, it would be justified in appropriate cases to pass even an uncontested decree. What would be the nature of such a case ultimately will have to be left to the wisdom and just exercise of discretion by the trial court who is seized of the trial of the suit."

6. The above two authorities of Apex Court have been referred to and followed recently by this Court in Maharaji Kunwar Vs. Sheo Shanker, Second Appeal No. 2276 of 1977, decided on 10.04.2013.

7. Similarly, where the Court decided to proceed ex parte, there also unless the plaintiff proves his case the suit cannot be decreed merely for the reason that suit is proceeding ex parte. In the present case The Trial Court committed error in decreeing suit without discussing plaint case on merits and recording a finding in respect of matters whereupon the suit could not have been decreed, unless those facts are proved. A similar error has been committed by Lower Appellate Court in dismissing the suit without discussing matter on merits and thereby depriving plaintiff to have a decision on merits either way.

8. In the present case, at the pain of repetition, I find that the Trial Court unfortunately proceeding ex parte has not discussed the matter and there is nothing to show that sale deed was forged or fictitious yet by simply observing that sale deed was forged and fictitious it decreed the suit, which, in my view, has rightly been upset by Lower Appellate Court but the Lower Appellate Court has also committed patent error by not remanding suit to be decided on merits afresh.

9. Sri R.C. Singh, learned counsel for the appellant stated at the Bar that he has no objection in case defendants-respondents are permitted to participate in original proceedings before Trial Court provided they cooperate for expeditious disposal of suit.

10. Sri H.S.N. Tripathi, learned counsel appearing for respondents also made a statement that defendants shall cooperate for expeditious disposal of suit.

11. In the facts and circumstances of the case, the appeal is allowed. The judgment and decree dated 21.07.2001 passed by Lower Appellate Court, to the extent it has dismissed suit, is hereby set aside and the matter is remanded to Trial Court to decide Original Suit No. 2078 of 1996 afresh. It is also provided that the defendants shall file written statement within a period of one month from today, whereby the Trial Court shall permit the parties to lead evidence and shall decide the matter expeditiously, preferably within a period of six months from the date of production of a certified copy of this order before it. It is also made clear that in case the defendants-respondents fail to file their written statement, as directed above, the Trial Court shall proceed accordingly to pass appropriate order considering the law laid down by Apex Court in Balraj Taneja (supra) and C.N.Ramappa Gowda (supra).

Order Date :- 3.5.2013

AK