Shahul Hameed vs Johny
2021 Latest Caselaw 22857 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                    PRESENT
                 THE HONOURABLE MR. JUSTICE P.SOMARAJAN
      TUESDAY, THE 23RD DAY OF NOVEMBER 2021 / 2ND AGRAHAYANA, 1943
                       RFA (INDIGENT) NO. 473 OF 2019
   AGAINST THE JUDGMENT & DECREE DATED 6/2/2018         IN OS 324/2014 OF II
                       ADDITIONAL SUB COURT,THRISSUR,
APPELLANT/DEFENDANT:

            SHAHUL HAMEED
            AGED 66 YEARS
            S/O KUNJALI, ALUNGAL HOUSE, PANTHALOOR DESOM, THALAPILLY
            TALUK, CHOWANNUR VILLAGE AND POST
            BY ADVS.
            BENOJ C AUGUSTIN
            AKHILESH S.
            SHILPA M.RAJAN
            S.SETHU LEKSHMI
            NASEEBA K.T.
            NAZRIN HALLAJ
            P.K.ANTONY
            U.M.HASSAN
            J.KASTHURI
            LAKSHMINARAYAN RAJAN
            SAIJO HASSAN
            NAGARAJ NARAYANAN
            RAFEEK. V.K.
            P.PARVATHY
            SURYA P SHAJI
            AATHIRA SUNNY
            MANAS P HAMEED
            ELDHO.N.MONCY


RESPONDENTS/PLAINTIFFS:

     1      JOHNY
            AGED 56 YEARS
            S/O KOCHUVARIED, GOPURATHINGAL HOUSE, MAMBRA DESOM,
            PARAKADAVU VILLAGE, ALUVA TALUK- 683 579
     2      GEORGE
            S/O KURIAPPAN, PUTHUVA HOUSE, KUNNUKARA VILLAGE, PARAVOOR
            TALUK - 683 578.
            BY ADVS.
            C.P.WILSON
            ROSE MICHAEL


     THIS   REGULAR    FIRST   APPEAL   HAVING   COME   UP   FOR   ADMISSION   ON
23.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 RFA (Indigent) No.473 of 2019                 2

                                                                                    CR

                                     JUDGMENT

In a suit for specific performance of contract for sale, a two line judgment

was delivered by the learned Sub Judge after specifying ten agreements with its

respective dates. No discussion was made with respect to the content of the

abovesaid documents or its evidentiary value and the purpose for which the said

agreements were executed. In fact, there is no speaking order. The relevant

portion of the judgment is extracted below for reference:

"The 2nd plaintiff when examined himself as PW1 filed affidavit in lieu of examination in chief reiterating the averments contained in the plaint. He tendered agreement dated 11.04.2009, agreement dated 26.05.2009, agreement dated 27.08.2010, agreement dated 30.01.2011. Agreement dated 01.07.2011, agreement dated 29.5.2012, agreement dated 10.07.2012 agreement dated 10.09.2012, agreement dated 31.03.2013, extract of statement of account, agreement dated 30.06.2013, copy of notice, postal receipt and postal acknowledgment card to be marked and the same were marked as Exts.A1 to A14 respectively. The plaintiffs have proved their case by the unchallenged evidence. Considering the facts and the evidence this court does not find any reason to disallow the relief of specific performance."

2. A Division Bench of this Court in Centre for Management

Development v. Panayam Grama Panchayath (2017 (1) KLT 609) had the

occasion to come across a similar situation and has laid down the procedure to

be followed when the defendant remained ex parte. Paragraphs 6, 7 and 10 of

the said judgment are extracted below for reference:

"6. Rule 10 enables the court to pronounce a judgment against the defendant or to make such orders in relation to the suit as it think fit and to draw up a decree on pronouncement of judgment, when there is failure on the part of the defendant to submit his written statement within the time permitted or fixed by the court as required under Rule 1 or Rule 9 of Order VIII CPC. Needless to say that Rule 1 stands for submission of written statement and the time specified is 30 days. Proviso enables the court to extend the time up to 90 days from the date of service of summons. Rule 9 deals with the subsequent pleadings by way of additional written statement with the leave of court other than by way of defence to set off or counter claim. Rule 10 shall not be misunderstood as the enabling provision mandating the court to pass a judgment against the defendant invariably in all cases. It is really procedural law in effect. It has to read along with Rule 5 of Order VIII CPC .

7. Sub rule 1 of Rule 5 of Order VIII CPC deals with what amounts to admissions of fact in a pleading. What the rule says is that any allegation of fact must either be denied specifically or by necessary implication or there should be a statement that the fact is not admitted. The provisio to subrule 1 of Rule 5 says that even in such situation the court may in its discretion require any fact so admitted to be proved otherwise than by such admission. The proviso attached to Rule 5(1) of Order VIII CPC is really an exception to the general rule that the admitted fact need not be proved. The legislative intention is well explicit and clear by the incorporation of an exception to the general principle that the admitted fact need not be proved in the proviso attached to Rule 5(1) of Order VIII CPC. That would clearly show the duty cast on a court while dealing with a case which would fall under Order VIII Rule 5 CPC. The Rule of utmost caution incorporated in the proviso to Rule (5) (1) of Order VIII CPC to enable the court to exercise its discretion in the matter of proof, irrespective of the fact of admission, if any made, or caused to be made under Rule 5. So, the court is expected to exercise its discretion while pronouncing the judgment by virtue of power under Rule 5 of Order VIII CPC so as to satisfy itself with respect to the probative value of document and evidence adduced by the plaintiff in support of the pleading in the plaint. It is not permissible to pronounce a judgment by simply receiving a proof affidavit and document without looking into its content, its probative value, nature of document, admissibility of document etc.

10. It is brought to our notice that the written statement was filed in time. Nothing is mentioned in the impugned order with respect to the written statement submitted or with respect to the question of any admission, denial of pleadings of the plaintiff either specifically or impliedly. No discussion is made with respect to any admission or exercise of discretion, or the nature of document produced or its admissibility. Further, in a case wherein the written

statement was filed and thereafter the defendant remained ex parte, it is the duty of the court to look into the pleading raised in the written statement, so as to have an appreciation with respect to the requirement under Rule 5 of Order VIII CPC including the specific denial of pleading of plaintiff, if any, or admission, if any, thereof."

3. The trial court has failed to comply with the requirement under Rule 5

and 10 of Order VIII C.P.C. and overlooked the legal position settled by the

Division Bench of this Court. The courts are established as the last resort of an

aggrieved person and hence requires utmost care and caution while discharging

their duties and they shall not adopt any easy method of disposal of suit in a

routine manner without attending the disputed questions with the pleading and

evidence thereof. The practice being adopted by some of the subordinate courts

for easy disposal, taking the advantage of the absence of the defendant, by

stating "uncontroverted evidence/ unchallenged evidence proves the case of

plaintiff " without going into the admissibility of the evidence and its legal

impact on the issues involved is too dangerous and hence cannot be sustained.

It is not the challenge that governs, but the entitlement of the relief, for which

necessarily the court must go into the pleading and evidence. When written

statement is submitted, the court must address its effect on the case advanced by

the plaintiff such as admission, question of limitation etc. It is too adventurous

to grant a decree in favour of the plaintiff on the sole ground that the defendant

remained ex parte. The courts are not expected to adopt such easy method of

disposal of the suit without a speaking order and without adjudicating the

disputes/issues on the pleading and evidence involved.

4. The Apex Court in Modula India v. Kamakshya Singh Deo (AIR

1989 SC 162) made it clear that on failure of the defendant to file a written

statement as required under Order VIII Rule 1 C.P.C., the court is not bound to

to pronounce a judgment against the defendant for that reason alone. Though

this rule says that the "court shall pronounce judgment against the defendant"

still it does not make it mandatory for the Court to pass a decree in favour of the

plaintiff straightway because a written statement is not filed.

5. Early in the year 1973, this Court in Chari Vijayan v. Achuthan

Vasu (1973 KHC 188) had laid down the legal position thus:

" The attention to the pleadings and evidence in a case by the court even where the defendants do not appear and they are ex parte shows a healthy trend. In many cases the defendants may be unable to appear not because they have no cause to defend but because they may be unable to face a litigation primarily for want of funds. The courts owe a duty to weigh the merits of the case even when there is such non appearance."

6. When the suit is one for specific performance of the contract, the

court must also address the mandate under Sections 16 and 20 of the Specific

Relief Act, 1963 and its requirement even in a case wherein the defendant

remained ex parte or absent. The courts cannot wriggle out of the liability to

address the statutory mandate under Sections 16 and 20 of the Act. Before

granting specific performance, it is the duty of the court to ascertain whether

there is any sufficient pleading and proof regarding readiness and willingness as

mandated under Section 16 of the Act. Further, the court must also address the

discretion to be exercised as embodied under Section 20 of the Act before

passing a decree of specific performance.

7. In the instant case, the learned Sub Judge even did not care to

mention the various contentions raised in the written statement simply because

of the reason that thereafter the defendant remained absent. The said approach

of the trial court cannot be sustained. The judgment should contain the

respective pleadings raised by the parties though one among the parties

thereafter remained absent or ex parte. Further, the legal impact of ten

agreements commencing from 11/04/2009 to 30/06/2013 in a suit for specific

performance was not addressed in relation to the discretion that can be

exercised under Section 20 of the Act, much less it was not even mentioned

about the content of the abovesaid agreements. There is total failure on the part

of the court below to discharge the duty vested and that has resulted in

miscarriage of justice.

8. The decree and judgment of the court below are set aside. The

matter is remanded back to the trial court for fresh disposal. The parties shall

appear before the trial court on 10/12/2021. The appeal will stand allowed in

part accordingly. No cost.

9. The appellant shall pay the court fee payable within three weeks

from today, failing which it shall be recovered under Order 33 Rule 14 C.P.C.

by sending a copy of the decree to the District Collector concerned.

The Registry is directed to send a copy of this judgment to the Directorate

of Training attached to this Court for future guidance while imparting training.

A copy may also be circulated among the subordinate judicial officers through

the Principal District & Sessions Judge of each judicial district within the state.

Sd/-

                                                          P.SOMARAJAN
sv                                                           JUDGE