Smt.Vimalbai W/O Narayanrao vs Narayan Limbajirao Chaudhari
2003 Latest Caselaw 923 Bom

JUDGMENT

D.S. Zoting, J.

1.Heard Mr.S.S.Thombre, learned counsel for appellant ( original defendant) and Mr.A.S.Deshmukh, learned counsel for respondent ( original plaintiff ).

2.This second appeal is filed by the original defendant against the Judgment and decree dated 28th October, 1986 passed by 2nd Addl.District Judge, Parbhani in Regular Civil Appeal No.245 of 1985 whereby first appeal preferred by the present appellant came to be dismissed confirming the Judgment and decree passed by the trial court.

3.The present respondent ( hereinafter referred to as "plaintiff" ) filed Regular Civil Suit No.129/1983 against the appellant ( hereinafter referred to as "defendant"). 40 x 27 land out of survey No.9/1 within the limits of village Maliwada was the subject matter of the suit. Plaintiff claims to be the owner of the suit land. He filed the suit for declaration of his title and for possession of the suit property. According to him he got the said suit land on his share in the partition. However, in the year 1981 the defendant encroached upon the suit property. Therefore, he prayed that possession of the suit property be given to him by issuing mandatory injunction against the defendant to remove the structure on the suit land.

4.The summons was served on the defendant directing her to appear in the court and file written statement on 23rd November, 1983. She appeared on 23rd November, 1983 before the trial court. However, she filed application at Exh.9 for grant of adjournment for filing the written statement. Her application was allowed and the case was adjourned to 27th December, 1983 for filing the written statement on 27th December 1983. The defendant filed one more application Exh.10 requesting the court to grant adjournment for filing the written statement. That application was also allowed and the matter was adjourned to 21st January 1984. The defendant again filed application Exh.12 for grant of time for filing the written statement. Her application was allowed and again the matter was adjourned to 7th February, 1984. On 7th February, 1984 the advocate of the defendant filed application Exh.13. He requested for more time to file the written statement. That application was also allowed and time was given till 22nd February , 1984. Again on 22nd February, 1984 advocate for the defendant filed application Exh.14 and sought time to file the written statement. That application was also allowed and the case was adjourned till 13th March, 1984 for filing the written statement. However, on that day i.e. on 13th March, 1984, no application was filed on behalf of the defendant, nor written statement was filed, therefore, the learned trial Judge passed order below Exh.1 to the effect that "the suit shall proceed without written statement of the defendant." Thereafter also, the matter was adjourned from time to time for framing the issues. However, it is noticed by the trial court that as no written statement was filed, there was no need to frame the issues. Hence, the suit was posted for evidence on 7th September, 1985. On that day, plaintiff filed application for adjournment, which was allowed and the hearing was deferred on 9th September, 1985. On 9th September, 1985 the plaintiff filed affidavit Exh.16. Arguments were heard and the suit was posted for pronouncing the Judgment on 13th September, 1985. However, in the mean-while on 12th September, 1985, the defendant engaged one more advocate and through him filed application Exh.17 for taking the case on board, as defendant wanted to file the written statement and the affidavit. The said application was not accompanied by written statement and the affidavit. The trial court passed the order that "case is posted for Judgment on 13th September 1985; So it is not proper to take the case on board. The application was rejected." On 13th September, 1985 the Judgment was pronounced by the trial court passing the decree declaring the plaintiff as owner of the suit property and for recovery of possession of the suit property from the defendant.

5.Being aggrieved by the said Judgment and decree, the defendant preferred appeal bearing Reg.Civil Appeal No.245/1985 before the First Appellate Court. After hearing the arguments of the respective counsel for both the parties, the First Appellate Court dismissed the appeal and thereby maintained the decree of the lower court except the direction as regards the costs. In the appeal the defendant was directed to pay proportionate costs of the suit.

6.Thereafter, the original defendant has filed this second appeal under Section 100 of Code of Civil Procedure before this court. The appeal was admitted at the motion hearing on the ground that question of interpretation of the Order XVII and XIX of the Code of Civil Procedure is involved in the matter. When the matter came up for hearing before this court, both parties have rightly pointed out that for decision of this appeal no question of interpretation of Order XVII of the Code of Civil Procedure arises in the matter. After going through the provisions of Order XVII of the Code of Civil Procedure, it is crystal clear that the provisions of the said order are applicable in respect of adjournment to a party during hearing of the suit. The present matter pertains to the effect of not filing written statement till the stage the case is posted for Judgment. Therefore, in view of the submissions regarding this undisputed circumstance made by both the parties, there is no need to interpret the provisions of Order XVII of Civil Procedure Code.

7.As regards the interpretation of Order XIX of Civil Procedure Code, it is to be noted that order XIX of Civil Procedure Code, deals with the topic of "affidavits". It comprises of three Rules, which are as under:-

" 1.Power to order any point to be proved by affidavit:- Any Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable:

Provided that where it appears to the Court that either party bona fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorizing the evidence of such witness to be given by affidavit.

2.Power to order attendance of deponent for cross-examination:- (1) Upon any application evidence may be given by affidavit, but the Court may, at the instance of either party, order the attendance for cross-examination of the deponent.

(2) Such attendance shall be in Court, unless the deponent is exempted from personal appearance in Court or the Court otherwise directs.

3.Matters to which affidavits shall be confined:- (1) Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted; provided that the grounds thereof are stated.

(2)The costs of every affidavit which shall unnecessarily set forth matters of hearsay or argumentative matter, or copies of or extracts from documents, shall ( unless the Court otherwise directs) be paid by the party filing the same."

8.Relying on the provisions of Rule 1 of Order XIX of Code of Civil Procedure, the learned counsel for the appellant submitted that unless the court passed the order or permitted the party to file the affidavit, the affidavit can not be read in evidence. However, in the present case though no such order was passed by the court for allowing the plaintiff to adduce the evidence by affidavit, the plaintiff filed the affidavit and, therefore, under such circumstances according to the learned counsel for the appellant, the trial court ought not to have relied upon the affidavit filed by the plaintiff and ought not to have pronounced the Judgment.

9.As against this, the learned counsel for respondents submitted that where the affidavits are filed in support of the averments received by the court, the receiving the affidavits amounts to passing of the order under Order XIX Rule 1 of Code of Civil Procedure.

10.In support of their respective contentions, both the parties have placed reliance on the decision of this court reported in a case of Messrs. Shamsunder Rajkumar, a Firm dealing in Oil, Cakes, etc., Calcutta V/s Messrs. Bharat Oil Mills, Nagpur . In this case, this court has already interpreted the scope of provisions of Rule 1 to 3 of Order XIX of Code of Civil Procedure and held that affidavits cannot be used as evidence under any of the provisions of the Indian Evidence Act, however, they can be used as evidence only under Order XIX of Code of Civil Procedure.

11.It is also to be noted that in the same case Rule 1 and 2 of the Order XIX of Code of Civil Procedure, has been interpreted. As regards the interpretation of Order XIX Rule 1 of Code of Civil Procedure, it is said that in accordance with Order XIX Rule 1 of Code of Civil Procedure, the court has, for sufficient reasons, to pass an order that any particular fact or facts may be proved by affidavit. That would mean that affidavit evidence can not be entertained unless the Court passes an order. However, where the affidavits are filed and received by the court, and relied on the affidavit it is tantamount to passing an order under Order XIX Rule 1 of Code of Civil Procedure and compliance with the law. As the relevant provisions are already interpreted by this court in above referred case there is no need to go through the aspect of interpretation again and again.

12.As laid down by the Supreme Court in a case of Santosh Hazari V/s Purushottam Tiwari ( Dead ) by LRs a point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be substantial, a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.

13.As laid down in the above referred decision of the Supreme Court "to be a substantial question of law involving in the case, there must be first a foundation for it laid in the pleadings." In the present case as written statement is not filed, no question of laying a foundation for the question of law to be a substantial is made in the present case. It is to be noted that Section 100 of Code of Civil Procedure restricts the jurisdiction of the High Court to hear a second appeal only on substantial question of law. The phrase substantial question of law, as occurring in the amended Section 100 of Code of Civil Procedure, is not defined in the Code.

14.To be substantial, a question of law must be debatable, not previously settled by law. However, the point raised before this court to be a substantial question of law is no longer debatable because it was previously settled by a binding precedent. Therefore, I am of the view that the First Appellat Court relying on the case of Messrs. Shamsunder Rajkumar, a Firm dealing in Oil, Cakes, etc., Calcutta V/s Messrs. Bharat Oil Mills, Nagpur as well asKanhaiyalal V/s Meghraj ( A.I.R. 1954 Nag. 260 ) rightly held that when the trial Judge accepts the affidavit filed by plaintiff and relies on the same and it meant that impliedly the Judge has passed the order and permitted the party to lead evidence by filing affidavit and it is tantamount to passing an order under Order XIX, Rule 1 of the Code of Civil Procedure and it is in substantial compliance with the Law. The First Appellate Court, therefore, is not in error in dismissing the appeal.

15.The learned counsel for the respondent relying on the decision of the Apex Court in the case of Om Prakash Gupta V/s Union of India and another ( A.I.R. 2000 Supreme Court 3585 ) submitted that despite of granting repeated adjournments when the written statement was not filed for a period of more than two years, the Supreme Court directed the High Court to pronounce Judgment against the defendant under Order VIII Rule 10 of Code of Civil Procedure.

Date:-20.08.2003.

16. I have gone through the case relied upon by the learned counsel for the respondent. In the said matter notice was served on the defendant on 11th October, 1996 and since then no written statement was filed for a period of more than two years, despite of seeking adjournments from time to time for filing written statement and even after expiry of the said period of two years no written statement was filed. The appellant filed application under Order VIII Rule 10 of the Code of Civil Procedure. Considering the facts and circumstances, the Supreme Court allowed the application filed by the appellant under Order VIII Rule 10 of the Code of Civil Procedure and directed the High Court to dispose of the suit in accordance with law. So far as seeking repeated adjournments for filing written statement is concerned, the facts of the present matter are identical with that of the case referred to above relied upon by the learned counsel for the respondent.

17.Rule 10 of Order VIII of Code of Civil Procedure, is as under:-

"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."

18.In view of this provisions also, the trial court was justified in pronouncing the Judgment as the defendant failed to present the written statement called for by the Court. In view of the decision of the Supreme Court referred to above, relied upon by the learned counsel for the respondent, I do not find any error in passing the decree against the original defendant in view of the provisions of Order VIII Rule 10 of Code of Civil Procedure.

19.For the reasons stated above, there is no merits in the appeal as regards the points involved in the matter which are claimed to be substantial questions of Law. Therefore, the appeal is dismissed.