Madhya Pradesh High Court

Smt. Kanta Jain vs Bhagirat Prasad Lodhi on 9 March, 2022

Author: Vishal Mishra

1
IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 9th OF MARCH, 2022

WRIT PETITION No. 12697 of 2016

Between:-
SMT. KANTA JAIN W/O SHRI RAWJESH KUMAR
JAIN , AGED ABOUT 42 YEARS, OCCUPATION:
AGRICULTURIST AND BUSINESS GANDHINAGAR
BEGUMGANJ DISTT. RAISEN (MADHYA PRADESH)

.....PETITIONER
(BY SHRI SANKALP KOCHAR, ADVOCATE)

AND

1. BHAGIRAT PRASAD LODHI S/O LATE SHRI ANGAD
LODHI , AGED ABOUT 47 YEARS, VILL. GOPALPUR
TEH. GEGUMGANJ DISTT. RAISEN (MADHYA
PRADESH)

2. ONKAR PRASAD LODHI S/O LATE ANGAD LODHI ,
AGED ABOUT 35 YEARS, VILL. GOPALPUR TEH.
BEGUMGANJ (MADHYA PRADESH)

3. SEETARAM LODHI S/O LATE ANGAD LODHI ,
AGED ABOUT 38 YEARS, VILL. GOPALPUR TEH.
BEGUMGANJ (MADHYA PRADESH)

4. KALBAI @ KALWATI LODHI D/O LATE ANGAD
LODHI , AGED ABOUT 33 YEARS, VILL. KHAJURIYA
BARAMAD GARHI TEH. BEGUMGANJ (MADHYA
PRADESH)

5. PARVATI BAI LODHI D/O LATE ANGAD LODHI ,
AGED ABOUT 29 YEARS, VILL. PADARIYA
RAJADHAR TEH. BEGUMGANJ (MADHYA
PRADESH)

6. RAJA BAI LODHI W/O LATE ANGAD LODHI , AGED
ABOUT 67 YEARS, VILL. GOPALPUR TEH.
BEGUMGANJ (MADHYA PRADESH)

7. COLLECTOR COLLECTOR DISTT. RAISEN
(MADHYA PRADESH)

.....RESPONDENTS
(BY SHRI PRAMOD PANDEY, GOVT. ADVOCATE FOR THE STATE-
RESPONDENT NO.7)
(NONE FOR THE PRIVATE RESPONDENTS NO.1 TO 6 DESPITE
SERVICE)

T h is petition coming on for admission this day, the court passed the
Signature Not Verified
SAN following:
Digitally signed by MOHD IRFAN
ORDER

SIDDIQUI Date: 2022.03.15 14:07:50 IST The present petition under Article 227 of the Constitution of India has been

filed challenging the order dated 17.6.2016 passed by Civil Judge Class-II, Begumganj in Civil Suit No.14-A/2014 whereby the application filed by the petitioner under Order 8 Rules 1, 5 and 10 of C.P.C. has been dismissed by the trial Court.

It is submitted that the plaintiff/petitioner has filed a civil suit seeking relief of declaration and permanent injunction in relation to the suit property as reflected in the plaint and the relief sought by the petitioner be declared the owner and possession of the suit property and the defendants were restrained for interfering in the peaceful possession of the suit property. The written statement was filed on behalf of the defendant No.4, 5 and 6 but the defendant No.1 to 3 has not filed any written statement despite trial lapse of considerable period but trial Court has framed issues and proceeded for evidence. The affidavits of plaintiff/petitioner was filed in the matter. The respondents/defendants No.1 to 3 filed their affidavits in terms Order 18 Rule 4 of C.P.C. It is argued that the aforesaid affidavits under Order 18 Rule 4 of CPC has been filed without there being any written statement on record. Therefore, the petitioner has filed an application under Order 8 rules 1, 5 and 10 of CPC praying for rejection of affidavits filed by defendants No.1 to 3 as they have not filed any written statement in the matter, therefore, without there being any pleadings in the written statement on their behalf they are not permitted to file the affidavits. They may be permitted to participate in the civil suit proceedings but they cannot be permitted to lead evidence in the case once there is no pleading in the written statement. The aforesaid application has been rejected by the trial court vide impugned order dated 17.6.2016. He has placed reliance upon the judgments passed by the Supreme Court in the case of Syed and Company and others Vs. State of Jammu & Kashmir and others, 1995 Supp (4) SCC 442 and placed heavy reliance on para 10 wherein Supreme Court has held that no evidence can be led without their being any pleadings in the matter. He has further placed reliance upon the judgment by the Supreme Court in the case of M. Venkataramana Hebbar (dead) by LRs. Vs. M. Rajagopal Hebbar and Signature Not Verified SAN others, (2007) 6 SCC 401 and drawn attention of this Court to para 12 and 13 Digitally signed by MOHD IRFAN SIDDIQUI Date: 2022.03.15 14:07:50 IST wherein the Hon'ble Supreme Court has held that if there is no denial of the

assertion made by the appellant in the written statement on that behalf the said averments would therefore deemed to be admitted. In terms of Section 58 of the Evidence Act, the admitted facts need not to be proved. Para 12 and 13 reads as under-

Para 12 :- Even there had been no denial of the assertions made by the appellant in their written statement in that behalf, the said averments would, therefore, be deemed to be admitted. Order 8 rule 3 and Order 8 rule 5 of C.P.C. thus:

Order 8 Rule 3. Denial to be specific- It shall not be sufficient for a

defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.

Order 8 Rule 5. Specific denial. (1) Every allegation of fact 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 taken to be admitted except as against a person under disability:

Provided that the Court may in it discretion require any fact so admitted to be proved otherwise than by such admission.

(2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved.

(3) In exercising its discretion under the proviso to sub-rule (1) or under sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader.

(4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced.

Para 13:- Thus, if a plea which was relevant for the purpose of

Signature Not Verified maintaining a suit had not been specifically traversed, the court was entitled to SAN

Digitally signed by MOHD IRFAN draw an inference that the same had been admitted. A fact admitted in terms of SIDDIQUI Date: 2022.03.15 14:07:50 IST

Section 58 of the Evidence Act need not be proved.

He has again placed reliance upon the order passed by the High Court of Delhi in the case of Shri Labh Chand Jain Vs. Shri Sugan Chand Jain and others passed in Review Petition No.475/2009 & IA 15754/2009 in CS (OS) 2214/1988 dated 2.7.2010, wherein the Court has considered the limited scope of participation of a defendant in absence of any pleadings in the civil proceedings, drawing attention of this Court to para 5 and 6 of the judgment, which reads as under:-

Para 5:- A person who does not file written statement to a suit is not ousted from the suit. A person may not file written statement in the suit for several reasons like, he may think that the suit was inherently not maintainable and he would convince the Court about non- maintainability of the suit; he may think that the claim of the plaintiff was justified and he need not contest the claim; he may think that the claim of the plaintiff, even if decreed, was not going to affect him, so why should he unnecessarily file written statement; he may think that since other defendants were contesting the suit that was sufficient to protect his interest and he need not separately file a written statement and engage a counsel. These are some of the few possibilities where written statement may not be filed by a person. However, a person who does not file written statement can still participate in the proceedings and lead evidence either supporting the claim saying that he agrees with the plaint or he may argue before the Court that the claim was inherently not maintainable and he can demonstrate this without filing written statement. The Court cannot deny a person the right to participate in the proceedings if a person does not file written statement or has remained ex parte upto some stage. However, such a person who has been proceeded ex parte cannot be relegated back to the initial stage and he will have to join the proceedings from the stage he started appearing in the Court. In the case in hand, defendant no.3 joined the proceedings when evidence of defendants was going on and wanted that her evidence be also recorded. Under these circumstances, since she was allowed to participate in the proceedings, she had a right to lead evidence in support of plaintiff case. However, since she had not Signature Not Verified SAN

Digitally signed by MOHD IRFAN SIDDIQUI Date: 2022.03.15 14:07:50 IST filed written statement, it can be presumed that she was supporting the plaintiff

case. However, she cannot be permitted to lead evidence on the pleadings of other defendants by saying that she had adopted the written statement of other defendants. She cannot be given liberty to lead evidence on those pleadings in written statement of other defendants on which other defendants had opportunity to lead evidence. In absence of her written statement she can lead C S(OS) 2214/1988 Labh Chand Jain v. Sugan Chand Jain & Ors. Page 3 Of 4 evidence in support of plaintiff only to the extent of pleadings of the plaintiff. She cannot introduce new documents by attaching the documents along with affidavit of evidence, since the stage of filing documents was over long back.

Para 6:- The legal position about participation of defendant in the proceedings was made clear by the Supreme Court in AIR 1955 SC 425 Sangram Singh v Election Tribunal and AIR 1964 SC 497 Arjun Singh v Mohindra Kumar and Ors wherein the Supreme Court had observed that even in a case where defendant is proceeded ex parte, he cannot be penalized by not allowing him to take part in remaining proceedings of the suit. He, however, cannot claim to be relegated to the position at the commencement of the trial.

It is argued that he can participate in the proceedings of the civil suit but

cannot be permitted to lead evidence as the pleadings are not on record. It is submitted that there is an interim protection given by this Court, therefore, the further proceedings of the trial Court are being stayed from 9.8.2016. He has prayed for setting aside of the impugned order with the further direction to the the trial Court to proceed with the civil suit in accordance with the judgment as there are settled proposition of law.

Counsel for the State has submitted that he is formal party in the petition. From perusal of the record, it is seen that respondents are being served in the matter but they have not chosen to participate in the proceedings.

Heard learned counsel for the petitioner and perused the record. The disputed facts in the petition are that the civil suit for permanent injunction and declaration was filed wherein the written statement has been filed

Signature Not Verified only on behalf of respondents No.4, 5 and 6. There is no written statement filed on SAN

Digitally signed by MOHD IRFAN behalf of other respondents. The issues were framed and the trial proceeded in the SIDDIQUI Date: 2022.03.15 14:07:50 IST

matter. The statements under Order 18 Rule 4 of CPC was filed for leading

evidence. The defendant No.1, 2 and 3 has also filed affidavit under Order 18 Rule 4 of CPC.

An objection was raised by the petitioner by filing an application under Order 8 Rules 1 5, and 10 of CPC pointing out the fact that the affidavits filed by the defendant No.1, 2 and 3 cannot be taken for consideration as they have not filed any written statement in the matter and in absence of any pleadings, the affidavits cannot considered. There have been limited scope to participate in the proceedings of civil suit being no other defendants but they are not permitted to lead their evidence. They can cross-examined the plaintiff on their affidavit but they cannot be permitted to file any affidavits to the Order 18 Rule 4 of CPC in absence of any pleadings and the written statements.

Order 8 Rules 1, 5 and 10 are required to be seen which are as under:-

[1.Written Statement.â€"The Defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence:

Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.]

5. Specific denial.â€"1[(1)] Every allegation of fact 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 taken to be admitted except as against a person under disability:

Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission:

2[Provided further that every allegation of fact in the plaint, if not denied in the manner provided under Rule 3A of this Order, shall be taken to be admitted except as against a person under disability.] 3[(2) Where the defendant has not filed a pleading, it shall be lawful Signature Not Verified SAN

Digitally signed by MOHD IRFAN SIDDIQUI Date: 2022.03.15 14:07:50 IST for the court to pronounce judgment on the basis of the facts contained in

the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved.

(3) In exercising its discretion under the proviso to sub-rule (1) or under sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader.

(4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced.]

10. Procedure when party fails to present written statement called for by Court.â€"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:] 2[Provided further that no Court shall make an order to extend the time provided under Rule 1 of this Order for filing of the written statement.] It is seen from the record that the written statement is only filed on behalf of the defendant No.4, 5 and 6. Although, it is argued that they belongs to the same family but by mistake the written statements on behalf of all the respondents could not be mentioned but that cannot be a ground for entertaining the affidavits.

From perusal of the aforesaid orders passed by the Hon'ble Supreme Court as well as the Delhi High Court, it is apparently clear that the scope of participation of the defendants without there being any written statements to extent that even participating in the civil suit proceedings and also cross examined the plaintiff witnesses but he is not having any right to file the affidavit under Order 18 Rule 4 of CPC as there are no pleadings also the fact that there is no written statement on record filed on behalf of the respondents.

In such circumstances, order passed by the learned trial court is

Signature Not Verified unsustainable and same is hereby set aside.

SAN

Digitally signed by MOHD IRFAN Accordingly, writ petition is allowed.

SIDDIQUI Date: 2022.03.15 14:07:50 IST

Trial Court is directed to proceed with the civil suit considering the fact that

defendants No.1, 2 and 3 have not filed their written statement in the matter.

(VISHAL MISHRA) JUDGE irfan

Signature Not Verified SAN

Digitally signed by MOHD IRFAN SIDDIQUI Date: 2022.03.15 14:07:50 IST