Rajlaxmi Raghavan Iyengar And ... vs Usha Rangraj Iyengar
2002 Latest Caselaw 134 Bom

JUDGMENT

R.M.S. Khandeparkar, J.

1. Admit. By consent heard forthwith.

2. This appeal arises from the order passed on 22-2-2001 in Short Cause Suit No. 6979 of 1999 by the Bombay City Civil Court at Bombay decreeing the suit filed by the respondent against the appellants purportedly under Order VIII, Rule 10 of the Code of Civil Procedure.

3. Upon hearing the learned Advocates and perusal of the record the only point which arises for consideration in the matter is whether merely because the defendants fail to file written statement, is the trial Court to presume that the pleadings in the plaint are admitted and, therefore, the trial Court can decree the suit under Order VIII, Rule 10 of C.P.C. without passing appropriate judgment.

4. Facts in brief relevant for decision are that inspite of the repeated opportunities having been afforded to the appellants, written statement was not filed by the appellants in the civil suit filed by the respondent for injunction to restrain the appellants from disturbing the possession of the respondent in relation to the suit property. Since the appellants failed to file the written statement even on 22nd February, 2001 after being adjourned for filing of the written statement, the trial Court proceeded to presume that the pleadings in the plaint should be deemed to have been admitted and since interim relief was passed during the pendency of the said suit against the appellants, the suit was decreed in exercise of power under Order VIII, Rule 10 of C.P.C.

5. The impugned order, in fact, reads thus:

"Though sufficient time was granted, defendants have failed to file written statement. Hence, plaintiff's pleadings are deemed to have been admitted. The interim relief of the nature of prayer (a) has been granted on plaintiff's Notice of Motion. This is, therefore, a fit case for proceeding under Order 8, Rule 10 of Civil Procedure Code and plaintiff is entitled to judgment in her favour."

6. Order VIII, Rule 10 provides that 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. Apparently, therefore, it cannot be disputed that when defendant fails to present written statement on the day fixed for filing the same or on any day adjourned for such purpose, the Court is empowered to dispose of the suit by appropriate order in relation to the claim of the plaintiff. The Order VIII, Rule 10 specifically refers to the pronouncement of judgment or making of an order in relation to the suit as the Court thinks fit. In other words, it has to be an appropriate judgment in accordance with Order XX, Rule 4 of C.P.C. or at least an order as defined in section 2(14) of C.P.C. read with section 2(9) of C.P.C. in relation to the claim of the plaintiff in the plaint. When the provision of law specifically states that it has to be an order in relation to the suit, it invariably discloses the intention of the legislature that such order should apparently disclose as to what the claim is and whether the party is entitled for a relief in relation to such claim. It is not mere reproduction of the provision of Order VIII, Rule 10 of C.P.C. that will constitute a valid order under the said provision of law. Recording of the failure on the part of the defendant to file written statement itself would not justify the passing of one line order or non-speaking order in relation to the claim of the plaintiff. The judgment, as specified under Order XX, Rule 4 in case of Small Causes Court is to the effect that it should contain the points for determination and decision thereon whereas in all other cases judgment or order should disclose the reasons for the decision.

7. Bare reading of the impugned order passed by the trial Court discloses that the Court proceeded to dispose of the suit purportedly under Order VIII, Rule 10 of C.P.C. merely on account of absence of pleadings on the part of the defendants-appellants herein. Mere absence of the pleading on the part of the defendants cannot, ipso facto, result in the relief in favour of the plaintiff. There may be facts disclosed in pleadings which may require certain amount of proof to establish the same, there may be pleadings in the plaint which are required to be decided with reference to various provisions of law and to ascertain whether a party claiming the relief is entitled to the said relief on the basis of the facts disclosed in the plaint. Such exercise should be apparent on the face of the judgment or order which is to be passed under Order VIII, Rule 10 of C.P.C. Undisputedly no such exercise has been undertaken by the trial Court while passing the impugned order and merely on failure on the part of the appellants-defendants to file written statement, it has proceeded to presume that whatever that has been pleaded by the plaintiff is the gospel truth. Certainly the disposal of a suit in such a manner is in total breach of procedure prescribed by the Code. On this count alone the impugned order cannot be sustained and is liable to be set aside.

8. In the result, therefore, appeal succeeds. The impugned order is hereby quashed and set aside and the matter is remanded to the trial Court to proceed with the suit in accordance with the provisions of law. On oral request by the learned Advocate for the appellants, the appellants are afforded an opportunity to file the written statement on the very first date of the hearing to be fixed by the trial Court for the purpose of filing of the written statement, subject to the payment of cost of Rs. 2000/- by the appellants to the respondent. The payment of cost shall be condition precedent to enable the appellant to file the written statement. It is made clear that the trial Court may not grant any further adjournment to the appellants to file the written statement in case the appellants fail to file such written statement on the day fixed by the trial Court for filing the same. Parties to appear before the trial Court on 18th March, 2002 for the purpose of taking further date for the purpose of filing written statement by the appellant and for further proceeding in the matter. The appeal accordingly stands disposed of.