Ram Lakhan vs Viddya Devi
2017 Latest Caselaw 3711 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 
A.F.R.
 
Court No. - 6
 
Case :- SECOND APPEAL No. - 47 of 2013
 

 
Appellant :- Ram Lakhan
 
Respondent :- Viddya Devi
 
Counsel for Appellant :- S.K.Pandey
 
Counsel for Respondent :- Alok Pandey
 

 
Hon'ble Anil Kumar,J.

Matter is taken in the revised cause list.

None present on behalf of respondents.

Heard Sri S.K. Pandey, learned counsel for appellant and perused the record.

Facts in brief of the present case are that Bindeshwari, father of the appellant-plaintiff filed a suit for cancellation of sale deed dated 09.05.2000, registered as Regular Suit No. 59/2001 (Bindeshwari Vs. Vidya Devi).

The case as set up by the plaintiff-appellant in the plaint in brief is to the effect that plaintiff-appellant's father was uneducated and small agriculturist village man and husband of the defendant respondent is a clever man. The husband of the defendant went along with father of the plaintiff - appellant for getting sometime Government loan for opening the shop and he took thumb impression of the father of the plaintiff appellant on certain document, thereafter got executed a sale deed.

During the pendency of the suit (regular Suit No. 59/2001) Sri Bindeshwari has died, substituted by his legal heir Ram Lakhan- appellant.

As the defendant has not appeared in the suit before the trial court, so an order was passed to proceed ex-parted against him.

And by means of judgment and order dated 30.03.2010, the trial court had dismissed the suit of the plaintiff with the following findings :-

"वादीगण ने बैनामा के किसी भी गवाहान को साक्ष्य के रूप में प्रस्तुत नहीं किया है जिससे यह स्पस्ट हो की प्रतिवादिनी ने वादी को धोखा देकर बिना प्रतिफा के बैनामा लिखा है वादी द्वारा प्रस्तुत साक्षी के साक्ष्य से यह साबित नहीं होता है की प्रतिवादिनी ने वादी के पिता को धोखा देकर बैनामा प्राप्त कर लिया है अतः वादी द्वारा अपना वाद साबित करने में पूर्णरूपेण असफल रहा है दावा वादी ख़ारिज किये जाने योग्य है |"

Aggrieved by the same, plaintiff-appellant filed a Civil Appeal No. 107/2011 (Ramlakhan Vs. Vidya Devi), dismissed by the appellant Court/Additional District Judge, Court No. 9, Pratapgarh by judgment and decree dated 05.10.2012, confirming the finding given by the trial court. holding that the plaintiff-appellant has failed to prove by way of any cogent evidence that the sale deed has been got executed from the father of the plaintiff by defendant by playing fraud.

In view of the abvoesaid factual background, present second appeal has been filed under Section 100 CPC before this court challenging the judgment and decree passed by the appellate court.

On 21.11.2013, the same was admitted on the following substantial question of law:-

"i) Whether a Civil Court can dismiss a suit by rejecting the plaint version and the evidence led by the plaintiff in support of plaint version, which is not contested or controverted by the defendants in violation of the provisions contained in order 8 Rule 10 CPC?"

Sri S.K. Pandey, learned counsel for appellant while arguing the matter on the abovesaid substantial question of law submitted that even if the written statement has not filed by the defendant and the matter has been proceeded ex-parte as it is incumbent upon the trial court to frame the issue, as neither any issue was framed nor cross-examination of witness was made, so the suit was wrongly dismissed by the trial court, confirmed in the appeal, so the judgment and decree passed by the courts below liable to be set aside.

I have heard learned counsel for appellant and perused the record.

In order to consider the substantial question of on which the argument is made that if the defendant in the suit did not appear and the matter has been proceeded ex-parte then in that circumstances whether the court has power to dismiss the suit of the plaintiff.

In order to decide the said controversy, it is appropriate to quote relevant provisions of Order 8 Rule 10 CPC which is as under:-

"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 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."

Hon'ble the Apex Court in the case of Balraj Taneja and another Vs. Sunil Madan and another, 1999 (8) SCC 396, after taking into consideration the provisions of Order 8 Rule 10 CPC and the other relevant provisions of CPC held as under:-

Order 8 Rule 1 provides that the defendant shall file a Written Statement of his defence. It is further provided by Rule 3 of Order 8 that it shall not be sufficient for a defendant in his Written Statement to deny generally the grounds alleged by the plaintiff, but defendant must deal specifically with each allegation of fact of which he does not admit the truth. The further requirement as set out in Rule 4 is that if the allegation made in the plaint is denied by the defendant, the denial must not be evasive. It is, inter alia, provided in Rule 5 of Order 8 that every allegation of fact in the plaint, if not denied specifically or by necessary implication or stated to be not admitted in the written statement, shall be taken to be admitted.

The scheme of this Rule is largely dependent upon the filing or non-filing of the pleading by the defendant. Sub-rule (1) of Rule 5 provides that any fact stated 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 treated as admitted. Under Rule 3 of Order 8, it is provided that the denial by the defendant in his written statement must be specific with reference to each allegation of fact made in the plaint. A general denial or an evasive denial is not treated as sufficient denial and, therefore, the denial, if it is not definite, positive and unambiguous, the allegations of facts made in the plaint shall be treated as admitted under this Rule.

Sub-rule (2) provides that if the defendant has not filed his written statement, it would be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint. The rule further proceeds to say that notwithstanding that the facts stated in the plaint are treated as admitted, the Court, though it can lawfully pass the judgment, may before passing the judgment require such fact to be proved. The rule is thus in consonance with the Proviso which also requires the fact, even though treated as admitted, to be proved. Thus, the Proviso and Sub- rule (2) read together indicate that where

(i) an allegation of fact made in the plaint is not denied specifically, or

(ii) by necessary implication, or

(iii) stated to be "not admitted" in the pleading of the defendant, or

(iv) the defendant has not filed the written statement, such allegations of facts shall be treated as admitted. The Court in this situation can either proceed to pronounce judgment on such admitted facts or may require the plaintiff, in spite of such admission, to prove such facts.

Sub-rule (2) quoted above is thus an enabling provision which enables the Court to pronounce judgment on the basis of the facts contained in the plaint, if the defendant has not filed a Written Statement. What is important to note is that even though a Written Statement is not filed by the defendent, the court may still require a fact pleaded in the plaint to be proved.

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.

Patna High Court in the case of Dineshwar Prasad Bakshi Vs. Parmeshwar Prasad Sinha, AIR 1989 Patna 139, in para No. 13 held as under:-

"The judgment pronounced under Order VIII, Rule 10 of the Civil P.C. must satisfy the requirement of the judgment as defined in Section 2, Sub-section (9) of "the Civil P.C. and, therefore, the Court should go into the case and pronounce its judgment upon the facts."

Hon'ble the Apex Court in the case of Ramesh Chand Ardawatiya Vs. Anil Paanjwani, AIR 2003 SC 2508 while interpreting the provisions of Order 8 Rule 10 CPC held as under (relevant para):-

"Even if the suit proceeds ex-parte and in the absence of a written statement, unless the applicability of Order VIII Rule 10 of the CPC is attracted and the Court acts thereunder, the necessity of proof by the plaintiff of his case to the satisfaction of the Court cannot be dispensed with. In the absence of denial of plaint averments the burden of proof on the plaintiff is not very heavy. A prima facie proof of the relevant facts constituting the cause of action would suffice and the Court would grant the plaintiff such relief as to which he may in law be found entitled. "

Thus, in view of the abovesaid position of law that where a party from whom a written Statement is required either under Rule 1 or Rule 9 of Order 8 fails to file the same within the time permitted or fixed by the Court, the Court shall pronounce judgment against him or make such order in relation to the suit as it thinks fit as per Rule 10 CPC.

Further, if the Written Statement has not been filed by the defendant, it will be open to the Court to pronounce judgment against him or make such order in relation to the suit as it thinks fit.

Thus, it is to be noticed that if the Written Statement is not filed, the Court is required to pronounce judgment against the defendant. The words "against him" are to be found in Rule 10 of Order 9 which obviously means that the judgment will be pronounced against the defendant. This rule also gives a discretion either to pronounce judgment against the defendant or "make such order in relation to the suit as it thinks fit."

Words as mentioned in Order 8 Rule 10 CPC i.e. also "make such order in relation to the suit as it thinks fit". The same gives a discretion to the Court not to pronounce judgment against the defendant and instead pass such order as it may think fit in relation to the suit.

Taking into consideration the abovesaid facts as well as the facts of the present case that in the matter in issue, the plaintiff-appellant has filed a suit for cancellation of the sale deed which was ex-parte proceeded against the defendant and by means of the order dated 30.03.2010, the trial court has dismissed the suit of the plaintiff on the ground that he is not able to prove his case, the said finding has been upheld by the appellate court, so in view of the said facts, and the wordings given under Order 8 Rule 10 CPC "or make such order in relation to the suit as it thinks fit" there is no illegality committed by the trial court while dismissing the appellant-plaintiff's suit and by the appellate court while dismissing the appeal.

Further, on examination of the reasoning's recorded by the trial court, which are affirmed by the learned first appellate court in first appeal, I am of the view that the judgments of the trial court as well as the first appellate court are well reasoned and based upon proper appreciation of the entire material on record. No question of law much less a substantial question of law was involved in this case before the High Court. And no perversity or infirmity is found in the concurrent findings of fact recorded by the trial court that has been affirmed by the first appellate court to warrant interference in this appeal. None of the contentions of the learned counsel for the appellant-plaintiff can be sustained.

In view of the above, this Court finds that no substantial question oflaw arises in this appeal. The second appeal is dismissed.

Order Date :- 28.08.2017

Ravi/