Jharkhand High Court
Bhim Karmakar Aged About 51 Years Son Of ... vs Gouranga Gope on 22 April, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
2025:JHHC:11956
IN THE HIGH COURT OF JHARKHAND, RANCHI
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C.M.P. No. 1057 of 2022
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Bhim Karmakar aged about 51 years son of late Budheshwar Karmakar @
Budhu Karmakar resident of Village Malkundi, PO Matiyabandhi, P.S.
Chakulia, District East Singhbhum ...... .... ... Petitioner(s)
-- Versus --
1.Gouranga Gope, son of late Krishna Chandra Gope
2.Bishwanath Gope, son of Dhirendra Nath Gope
3.Ranjit Gope
4.Sourjit Gope, both sons of Gourango Gope all residents of Village
Malkundi, P.O. Matiya Bandhi, P.S. Chakulia, District East Singhbhum
...... .... ...Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner(s) : Mr. Chandrajit Mujkherjee, Advocate
For the O.P Nos.1 to 4 (s) : Mr. Bibhash Sinha, Advocate
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9/22.04.2025 Heard the learned counsel appearing on behalf of the petitioner as well
as the learned counsel appearing on behalf of the Opposite party nos.1 to 4.
2. This petition has been filed under Article 227 of the Constitution of India
for setting aside the order dated 16.02.2022 passed in Original Suit No.21/2018
whereby the learned court has been pleased to reject the petition filed by the
petitioner/plaintiff under Order VIII Rule 10 CPC.
3. The learned counsel for the petitioner submits that the learned court has
wrongly passed the said order and he refers the order dated 14.09.2018 and
submits that on that day the Vakalatnama has been filed on behalf of the
defendant nos.1 to 4 and the matter was posted for 14.12.2018. He further
submits by way of referring the order dated 13.2.2019, on that day, the written
statement as well as the proposed issue along with the documents have been
filed by the defendants which has been taken on record. He submits that
thereafter the said petition has been rejected by the order dated 16.2.2022
saying that it is not maintainable as written statement was already accepted by
the order dated 13.02.2019. He submits that the same was allowed in absence
of any condonation with regard to the delay in filing of the written statement.
In view of that, he submits that the said order may kindly be set aside.
4. The learned counsel appearing on behalf of the Opposite party submits
that the learned court has already taken on record the written statement and
the documents and the issues which clearly suggest that the learned court has
allowed the condonation and proceeded further. He submits that in between
before 16.02.2022 the proceeding has already been taken place about 4 to 5
times and thereafter the said petition has been filed and he submits that in that
view of the matter, the learned court has rightly passed the order. He relied in
the case of Hon'ble Supreme Court rendered in the case of Asma Lateef and
Another v. Shabbir Ahmad and Others, reported in (2024) 4 SCC 696
wherein at paragraph nos.25, 26, 28 and 29, it has been held as under:
"25. Order 8 Rule 10CPC, used as the primary source of
power by the trial court in passing the order dated 5-8-1991
against Samiullah, postulates the procedure that could be adopted
when a party fails to present its written statement upon the same
being called for by the court. Rule 10 reads as follows:
"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."
26. We have no hesitation to hold that Rule 10 is permissive
in nature, enabling the trial court to exercise, in a given case,
either of the two alternatives open to it. Notwithstanding the
alternative of proceeding to pronounce a judgment, the court still
has an option not to pronounce judgment and to make such order
in relation to the suit it considers fit. The verb "shall" in Rule 10
(although substituted for the verb "may" by the Amendment Act,
1976) does not elevate the first alternative to the status of a
mandatory provision, so much so that in every case where a party
from whom a written statement is invited fails to file it, the court
must pronounce the judgment against him. If that were the
purport, the second alternative to which "shall" equally applies
would be rendered otiose.
28. What emerges from a reading of Balraj Taneja [Balraj
Taneja v. Sunil Madan, (1999) 8 SCC 396] , with which we
wholeheartedly concur, is that only on being satisfied that there is
no fact which needs to be proved on account of deemed
admission, could the court pass a judgment against the defendant
who has not filed the written statement; but if the plaint itself
suggests involvement of disputed questions of fact, it would not be
safe for the court to pass a judgment without requiring the
plaintiff to prove the facts. Balraj Taneja [Balraj Taneja v. Sunil
Madan, (1999) 8 SCC 396] also lays down the law that provision of
Order 8 Rule 10CPC is by no means mandatory in the sense that a
court has no alternative but to pass a judgment in favour of the
plaintiff, if the defendant fails or neglects to file his written
statement.
29. If indeed, in a given case, the defendant defaults in
filing written statement and the first alternative were the only
course to be adopted, it would tantamount to a plaintiff being
altogether relieved of its obligation to prove his case to the
satisfaction of the court. Generally, in order to be entitled to a
judgment in his favour, what is required of a plaintiff is to prove his
pleaded case by adducing evidence. Rule 10, in fact, has to be read
together with Order 8 Rule 5 and the position seems to be clear
that a trial court, at its discretion, may require any fact, treated as
admitted, to be so proved otherwise than by such admission.
Similar is the position with Section 58 of the Evidence Act, 1872. It
must be remembered that a plaint in a suit is not akin to a writ
petition where not only the facts are to be pleaded but also the
evidence in support of the pleaded facts is to be annexed,
whereafter, upon exchange of affidavits, such petition can be
decided on affidavit evidence. Since facts are required to be
pleaded in a plaint and not the evidence, which can be adduced in
course of examination of witnesses, mere failure or neglect of a
defendant to file a written statement controverting the pleaded
facts in the plaint, in all cases, may not entitle him to a judgment
in his favour unless by adducing evidence he proves his
case/claim."
5. It is an admitted position that the defendants have appeared before the
learned court and filed Vakalatnama along with written statement, the
documents and the issues which have been taken on record and at that time no
opposition was made on behalf of the petitioner/ plaintiff and at belated stage
the said petition was filed. It is well settled that the Order VIII Rule 10 of the
C.P.C is not mandatory and it is directory as it has been held in several
judgments as well as in the judgment relied by the learned counsel for the
Opposite parties in the case of Asma Lateef and Another v. Shabbir
Ahmad and Others(supra) and that option is always available to the court as
has been held in the said judgment relied by the learned counsel for the
Opposite parties. The Court finds that there is no illegality in the impugned
order, and accordingly, this petition is dismissed.
( Sanjay Kumar Dwivedi, J.)
SI/
A.F.R.
