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Saturday, August 17, 2013

Order 8 Rule 10 C.P.C.= The fact that the defendants remained ex parte or no written statements are filed, by itself, does not relieve a Court, of its obligation to verify the legality and genuinity of the claim in any suit.

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=16690
PETITIONER:
BALRAJ TANEJA & ANR.

Vs.

RESPONDENT:
SUNIL MADAN & ANR.

DATE OF JUDGMENT: 08/09/1999

BENCH:
D.P.Mohapatro, S.Saghir Ahmad




JUDGMENT:



      S.SAGHIR AHMAD, J.


      Leave granted.



      Respondent  No.1, Sunil Madan, filed a suit  in the
Delhi  High Court against the appellants and respondent No.2
for specific performance of an agreement for sale in respect
of  property No.W-118, First Floor, Greater Kailash-II, New
Delhi.
The suit was filed in May, 1996.
 Summons which were
issued to  the appellants and respondent  No.2  were duly
served upon  them  and in response thereto,  they  put  in
appearance  before  the Court on 20th September,  1996 and
prayed for eight weeks' time to file written statement which
was  allowed and the suit was adjourned to 22nd of  January,
1997.  Written Statement was not filed even on that date and
an  application was  filed  for further time  to  file the
written statement which was allowed as a last chance and the
written statement  was directed  to be  filed by  7th  of
February,  1997.
The suit was fixed for 10th of  February,
1997.

      Since  the written statement was still not filed, the
Court decreed the suit for specific performance in favour of
respondent  No.1  under Order 8 Rule 10 C.P.C.
 Respondent
No.1  was directed to deposit a sum of Rs.3 lakhs, being the
balance amount of sale consideration, within six weeks and
on  the amount being so deposited, he was given the  liberty
to  apply to the court for appointment of a Commissioner for
executing  the sale  deed  in his  favour.
The   review
application  filed  by the appellants  including  respondent
No.2  was dismissed by the High Court on 13th of May,  1997.
An  appeal,  which  was filed by the  appellants,  including
respondent  No.2,  thereafter, before the  Division  Bench
(R.F.A.(OS)  NO.36/97) was dismissed on 29.4.1998.  It is in
these  circumstances that the present appeal has been  filed
in this Court.

      Mr.   Rakesh  Dwivedi,  Sr.   Advocate,  appearing  on
behalf of the appellants has contended that having regard to
the  circumstances  of the  case, the High  Court  was not
justified  in  passing the decree against  the appellants,
including  respondent No.2, for specific performance  merely
on  the ground that written statement was not filed by them
on  the date fixed for that purpose.  It is also  contended
that the High Court had rejected the application for time to
file written statement on the ground that there was a change
of  counsel  appearing on behalf of the appellants  and  no
reason was  indicated by them for not filing the  written
statement  by  7th  of February, 1997 or even on  10th  of
February,  1997 when the suit was decreed under Order 8 Rule
10  C.P.C., which indicates that the attitude adopted by the
High  Court  in decreeing the suit under Order 8  Rule  10
C.P.C. was wholly punitive in nature resulting in  serious
miscarriage  of justice.
Mr.  Rakesh Dwivedi also contended
that  even  if the Court had decreed the suit under Order  8
Rule  10  C.P.C., it ought to have written a  "judgment"  by
stating clearly  the facts of the case and the reasons for
decreeing  the suit.
The suit, it is contended, could not
have  been  decreed  merely for not filing  of the  written
statement  unless  facts  set out in the plaint were  found
proved by the High Court.

      Learned counsel appearing on behalf of respondent No.1
has  contended that  the appellants,  including  respondent
No.2, had adopted dilatory tactics and their intention, from
the very beginning, was to delay the disposal of the suit so
as  to harass respondent No.1 who had agreed to purchase the
property in question and had also paid substantial amount by
way of earnest money.  It is also contended that the conduct
of  the appellants and respondent No.2 was not proper and
they  were  negligent throughout, inasmuch as not only that
they  did  not file the written statement,  they  filed  an
appeal before the Division Bench which also was beyond time.
It  is also  contended that while applying  for  time for
written statement as also for review of the judgment passed
by  the Court under Order 8 Rule 10 C.P.C., the  appellants
and  respondent No.2 had not given any reason for not filing
the  written statement on the dates fixed by the High  Court
and,  therefore,  having  regard  to   the  conduct  of the
appellants  as also  the vital fact that the owner  of the
property,  namely,  respondent No.2,  had not come  up  in
Special Leave Petition, this Court should not exercise its
discretion  under Article 136 of the Constitution in  favour
of  the appellants.
Since the suit has been decreed by the
High  Court  under  Order 8 Rule 10 C.P.C., 
 we will  first
examine the provisions contained in various Rules of Order 8
to  find out
whether the jurisdiction was properly exercised
by  the High Court in decreeing the suit under Order 8 Rule
10  C.P.C.  
Order 8 Rule 1 provides that the defendant shall
file  a Written  Statement of his defence.
It is  further
provided  by  Rule  3  of  Order 8  that  it  shall  not  be
sufficient  for a defendant in his Written Statement to deny
generally   the grounds  alleged  by  the  plaintiff, but
defendant  must deal specifically with each  allegation  of
fact  of  which he does not admit the truth.
The  further
requirement  as set out in Rule 4 is that if the  allegation
made  in  the plaint is denied by the defendant, the  denial
must  not be evasive.
It is, inter alia, provided in Rule 5
of  Order 8 that every allegation of fact in the plaint,  if
not  denied  specifically  or by  necessary  implication  or
stated to be not admitted in the written statement, shall be
taken to be admitted.


      This Rule provides as under :


      "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 its 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."



      The  scheme of this Rule is largely dependent upon the
filing or  non-filing of the pleading by  the  defendant.
Sub-rule  (1) of Rule 5 provides that any fact stated 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 treated as admitted.  Under Rule  3
of  Order 8, it is provided that the denial by the defendant
in  his written statement must be specific with reference to
each  allegation  of  fact made in the plaint.  
A  general
denial or  an evasive denial is not treated  as  sufficient
denial and,  therefore, the denial, if it is not  definite,
positive  and unambiguous, the allegations of facts made  in
the plaint shall be treated as admitted under this Rule.

      The  proviso appended to this Rule is important in the
sense that though a fact stated in the plaint may be treated
as admitted, the Court may, in its discretion, still require
such  "admitted fact" to be proved otherwise than  by such
admission.   This  is  an exception to the general  rule  of
evidence that a fact which is admitted need not be proved.

      Sub-rule (2)  provides that if the defendant has not
filed  his  written  statement, it would be lawful  for the
Court  to  pronounce  judgment on the basis  of  the  facts
contained  in the plaint.  The rule further proceeds to say
that notwithstanding that the facts stated in the plaint are
treated as admitted, the Court, though it can lawfully pass
the  judgment, may before passing the judgment require such
fact  to be proved.  The rule is thus in consonance with the
Proviso which also requires the fact, even though treated as
admitted, to be proved. Thus, the Proviso and Sub- rule (2)
read together indicate that where

      (i)  an  allegation of fact made in the plaint is not
denied specifically, or

      (ii) by necessary implication, or

      (iii)  stated to be "not admitted" in the pleading  of
the defendant, or

      (iv)   the  defendant  has   not filed  the   written
statement,


      such   allegations  of  facts   shall  be treated  as
admitted.  The Court in this situation can either proceed to
pronounce judgment on such admitted facts or may require the
plaintiff, in spite of such admission, to prove such facts.

      Sub-rule (2)  quoted  above  is thus  an   enabling
provision  which enables the Court to pronounce judgment  on
the  basis  of the facts contained in the  plaint,  if the
defendant  has not  filed  a Written  Statement.   What  is
important to note is that even though a Written Statement is
not  filed  by the defendent, the court may still require  a
fact pleaded in the plaint to be proved.

      We  may now consider the provisions of Order 8 Rule  9
as  also the provisions contained in the other Rule,  namely
Rule  10,  under which the instant suit has been decreed  by
the High Court. These Rules are quoted below:


      "Rule   9.   Subsequent  pleadings   --  No   pleading
subsequent  to the written statement of a  defendant  other
than  by way of defence to a set-off or counter-claim  shall
be  presented except by the leave of the Court and upon such
terms as the Court thinks fit, but the Court may at any time
require a written statement or additional written statement
from  any  of the parties and fix a time for presenting the
same.

      Rule  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."
.lm10

      This  Rule,  namely Rule 10, was also amended  by the
Code  of Civil Procedure (Amendment) Act, 1976 (Act No. 104
of  1976).  Prior to its amendment, it was held in a  number
of  decisions  that  the rule can be invoked only  in  those
situations  where  the Court has required the  defendant  to
file the Written Statement in terms of Rule 9 of Order 8.  A
few  other  High  Courts had taken the view that  this Rule
would  be  applicable  even to those cases where  a  Written
Statement was required to be filed under Order 8 Rule 1 CPC.
The  conflict of decisions has been set at rest by providing
specifically  under this rule that where a party from whom a
Written Statement is required either under Rule 1 or Rule 9
of  Order  8  fails  to present the  same  within  the time
permitted  or fixed by the Court, the Court shall  pronounce
judgment  against him or make such order in relation to the
suit  as  it  thinks  fit.  Rule 10 thus  governs  both the
situations  where a Written Statement is required under Rule
1  of Order 8 as also where it has been demanded under Rule
9.  In both the situations, if the Written Statement has not
been filed by the defendant, it will be open to the Court to
pronounce  judgment  against  him  or  make  such  order  in
relation  to the suit as it thinks fit. It is to be noticed
that  if  the Written Statement is not filed, the  Court  is
required  to pronounce judgment against the defendant. The
words  "against him" are to be found in Rule 10 of Order  9
which  obviously  means that the judgment will be  pronouced
against the  defendant.  This rule also gives a  discretion
either to pronounce judgment against the defendant or "make
such  order in relation to the suit as it thinks fit." These
words  are of immense significance, inasmuch as they give  a
discretion  to the Court not to pronounce judgment  against
the  defendant and instead pass such order as it may  think
fit in relation to the suit.

      There  are  thus two separate and distinct  provisions
under  which the Court can pronounce judgment on the failure
of the defendant to file Written Statement.  The failure may
be  either under Order 8 Rule 5(2) under which the Court may
either pronounce judgment on the basis of the facts set out
in  the plaint or require the plaintiff to prove  any such
fact;  or the failure may be under Order 8 Rule 10 CPC under
which  the  Court is required to pronounce judgment  against
the  defendant or to pass such order in relation to the suit
as it thinks fit.

      This  Court,  in Sangram Singh v. Election  Tribunal,
Kotah  & Anr.  AIR 1955 SC 425 = 1955 (1) SCR 1, observed on
page 432 of the report as under :


      "(32)  We have  already seen that when a summons  is
issued to the defendant it must state whether the hearing is
for  the settlement of issues only or for the final disposal
of  the suit (O.5, R.5).  In either event, O.8,  R.1  comes
into  play  and if the defendant does not present a  written
statement  of  his  defence, the Court can  insist  that  he
shall; and  if,  on being required to do so, he  fails  to
comply --

      "the Court may pronounce judgment against him, or make
such  order in relation to the suit as it thinks fit." (O.8,
R.10).

      This  invests  the  Court with  the  widest  possible
discretion  and enables it to see that justice is  done  to
`both' sides;  and also to witnesses if they are present:  a
matter on which we shall dwell later.

      (33)  We have  seen that if the defendant  does not
appear at  the first hearing, the Court  can proceed `ex
parte', which means that it can proceed without a  written
statement;   and  O.9, R.7 makes it clear that unless good
cause  is  shown  the defendant cannot be relegated  to the
position  that he would have occupied if he  had  appeared.
That  means that he cannot put in a written statement unless
he  is allowed to do so, and if the case is one in which the
Court considers a written statement should have been put in,
the consequences entailed by O.8, R.10 must be suffered.

      What  those consequences should be in a given case  is
for  the Court, in the exercise of its judicial discretion,
to  determine. No hard and fast rule can be laid down.  In
some  cases, an order awarding costs to the plaintiff  would
meet  the ends of justice:  an adjournment can be granted or
a written statement can be considered on the spot and issues
framed.  In  other cases, the ends of justice may call for
more drastic action."


      This  decision  was followed by the J&K High Court  in
Chuni  Lal Chowdhry vs. Bank of Baroda and Others, AIR 1982
J&K 93 in which it was laid down as under :

      "On  the authority of these observations, Rule 10 can
be  taken  to  relate  to  Rule 1 of  Order  8 and  on the
defendant's  failure  to  file written  statement  of his
defence,  when so required, the court has the power,  either
to  pronounce the judgment against him or make such order in
relation to the suit as it thinks fit depending upon whether
the suit was for the final disposal or for the settlement of
the  issues  only.  In the latter case, the court has  ample
discretion  to grant  more  time  for filing the  written
statement  or to proceed to hearing of the suit without such
written statement.   The  discretion  cannot, however,  be
exercised  arbitrarily.  In  determining  which  course  to
adopt, the  court  will always be guided by the  facts and
circumstances  of  each case. Where the court decides  to
proceed to  hearing  of  the suit  without  the   written
statement,  that  would not debar the defendant from  taking
part  in further proceedings of the case.  His participation
would, however,  be hedged in by several  limitations.  He
will  not  be able either to cross-examine  the plaintiff's
witnesses  or to produce his own evidence with regard to any
questions of fact which he could have pleaded in the written
statement.   He will, however, be competent to cross-examine
the plaintiff's witnesses in order to demolish their version
of the plaintiff's case.

      To  the same effect is the decision of the Patna High
Court  in  Siai Sinha v.  Shivadhari Sinha, AIR  1972 Pat.
81."


      In Dharam Pal Gupta vs.  District Judge, Etah 1982 All
Rent Cases 562, the Allahabad High Court held as under :


      "Therefore,  reading  Order VIII, R.10, C.P.C.   along
with  O.VIII,  R.5,  C.P.C., it seems that even though the
filing of written statement has been made obligatory and the
Court has now been empowered to pass a judgment on the basis
of  the plaint on the ground that no written statement has
been  filed  by the defendant still, the discretion  of the
Court  has been preserved and despite the non-filing of the
written statement the Court may pass any other order as  it
may  think  fit (as laid down in O.  VII R.10) or the  Court
may  in its discretion require any particular fact mentioned
in  the plaint to be proved as laid down in Order VIII, R.5
sub-rule (2) C.P.C."


      This  decision  was followed in State of U.P.  & Anr.
vs.  Dharam Singh Mahra AIR 1983 Allahabad 130.

      In  Smt. Sushila  Jain vs.   Rajasthan   Financial
Corporation  Jaipur,  AIR 1979 Raj 215 and also in  Rosario
Santana Vaz  vs.  Smt. Joaquina Natividate  Fernandes AIR
1981  Goa  61, it was laid down that if the  defendant was
deliberately  delaying the  proceedings and had  failed  to
assign good and sufficient cause for not filing the Written
Statement, the Court could forfeit his right of defence.

      There  is yet  another provision under  which  it  is
possible  for the Court to pronounce judgment on  admission.
This  is  contained in Rule 6 of Order 12 which provides  as
under :

      "R.6 Judgment on admissions.

      (1)  Where admissions of fact have been made either in
the  pleadings or otherwise, whether orally or in  writing,
the  Court  may at  any stage of the suit,  either  on the
application  of any party or of its own motion and  without
waiting for the determination of any other question between
the parties, make such order or give such judgment as it may
think fit, having regard to such admissions.

      (2)  Whenever a judgment is pronounced under  sub-rule
(1),  a decree shall be drawn up in  accordance  with the
judgment  and  the decree shall bear the date on  which the
judgment was pronounced."

      This  Rule was substituted in place of the old Rule by
the  Code  of  Civil Procedure (Amendment) Act, 1976. The
objects and reasons for this amendment are given below:-

      "Under  rule  6, where a claim is admitted, the  Court
has  jurisdiction to enter a judgment for the plaintiff and
to  pass a decree on the admitted claim.  The object of the
rule  is  to enable a party to obtain a speedy judgment  at
least to the extent of the relief to which, according to the
admission  of the defendant, the plaintiff is entitled. The
rule  is wide enough to cover oral admissions. The rule  is
being  amended to  clarify that oral  admissions  are also
covered by the rule."

      Under  this  Rule, the Court can, at an  interlocutory
stage  of  the proceedings, pass a judgment on the basis  of
admissions  made by the defendant.  But before the Court can
act  upon  the admission,  it has to be  shown  that the
admission  is  unequivocal, clear and positive.  This Rule
empowers the Court to pass judgment and decree in respect of
admitted  claims pending adjudication of the disputed claims
in the suit.

      In  Razia Begum vs.  Sahebzadi Anwar Begum & Ors. AIR
1958  SC 886 = 1959 SCR 1111, it was held that Order 12 Rule
6  has to be read along with Proviso to Rule 5 of Order  8.
That  is  to say, notwithstanding the admission made by the
defendant  in his pleading, the Court may still require the
plaintiff to prove the facts pleaded by him in the plaint.

      Thus, in spite of admission of a fact having been made
by  a  party  to the suit, the Court may still require the
plaintiff  to prove the fact which has been admitted by the
defendant.   This is also in consonance with the  provisions
of Section 58 of the Evidence Act which provides as under :


      "58.  Facts admitted need not be proved - No fact need
be  proved  in any proceeding which the parties thereto  or
their agents agree to admit at the hearing, or which, before
the  hearing, they agree to admit by any writing under their
hands, or which by any rule of pleading in force at the time
they are deemed to have admitted by their pleadings:

      Provided that  the  Court  may, in  its discretion,
require the  facts admitted to be proved otherwise than  by
such admissions."

      The  Proviso  to this Section  specifically  gives  a
discretion  to the Court to require the facts admitted to be
proved otherwise  than by  such  admission.
The  Proviso
corresponds to the Proviso to Rule 5(1) Order 8 CPC.

      In  view of the above, it is clear that the Court,  at
no  stage, can act blindly or mechanically.  While  enabling
the  Court  to pronounce judgment in a situation  where  no
Written Statement is filed by the defendant, the Court has
also  been given the discretion to pass such order as it may
think  fit  as an alternative. This is also  the  position
under  Order  8 Rule  10 CPC where  the  Court can  either
pronounce  judgment against the defendant or pass such order
as it may think fit.

      Having  regard  to the provisions of Order 12 Rule  6;
Order  5 Rule 8, specially Proviso thereto;  as also Section
58  of the Evidence Act, this Court in Razia  Begum's case
(supra) observed as under :  .lm15

      "In  this connection, our attention was called to the
provisions  of R.6 of O.12 of the Code of Civil  Procedure,
which lays down that, upon such admissions as have been made
by  the Prince in this case, the Court would give  judgment
for  the  plaintiff.  These provisions have got to  be read
along  with R.5 of O.8 of the Code with particular reference
to the proviso which is in these terms:

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


      The  proviso  quoted  above,  is identical  with the
proviso to S. 58 of the Evidence Act, which lays down that
facts  admitted need  not  be proved. Reading  all  these
provisions  together,  it is manifest that the Court is not
bound  to grant the declarations prayed for, even though the
facts alleged in the plaint, may have been admitted."

      The Court further observed:-


      "Hence,  if  the Court, in all the circumstances of  a
particular  case,  takes the view that it would insist upon
the  burden of the issue being fully discharged, and if the
Court, in pursuance of the terms of S. 42 of the  Specific
Relief Act, decides, in a given case, to insist upon  clear
proof of even admitted facts, the Court could not be said to
have exceeded its judicial powers."

      As  pointed  out earlier, the Court has not  to act
blindly upon the admission of a fact made by the  defendant
in  his Written Statement nor the Court should proceed  to
pass judgment blindly merely because a Written Statement has
not been filed by the defendant traversing the facts set out
by  the plaintiff in the plaint filed in the Court.   In  a
case, specially where a Written Statement has not been filed
by  the defendant, the Court should be a little cautious  in
proceeding  under  Order 8 Rule 10 CPC.
Before passing the
judgment  against the defendant it must see to it that even
if  the facts set out in the plaint are treated to have been
admitted,  a judgment could possibly be passed in favour  of
the  plaintiff without requiring  him to  prove  any fact
mentioned  in  the  plaint.   It  is  a matter of  Court's
satisfaction  and,  therefore, only on being satisfied that
there  is no fact which need be proved on account of  deemed
admission,  the Court can  conveniently  pass a  judgment
against the  defendant who  has   not filed the  Written
Statement.   But  if the plaint itself indicates that  there
are  disputed  questions  of  fact   involved  in  the case
regarding  which  two different versions are set out in the
plaint itself, it would not be safe for the Court to pass a
judgment  without requiring the plaintiff to prove the facts
so  as to settle the factual controversy.  Such a case would
be  covered  by the  expression  "the Court  may,  in its
discretion, require any such fact to be proved" used in sub-
rule  (2) of Rule 5 of Order 8, or the expression "may make
such order in relation to the suit as it thinks fit" used in
Rule 10 of Order 8.


      Applying these tests to the instant case, it will  be
noticed that  in  a  suit for specific performance  it  is
mandatorily  required  by Section 16 of the Specific  Relief
Act  to plead readiness and willingness of the plaintiff  to
perform his part of the contract.  The Court, before acting
under Order 8 Rule 10 has to scrutinise the facts set out in
the  plaint  to find  out  whether  all  the  requirements,
specially  those  indicated  in Section 16 of  the  Specific
Relief Act, have been complied with or not.  Readiness and
willingness  of the  plaintiff to perform his part  of the
contract is a condition precedent to the passing of a decree
for specific performance in favour of the plaintiff.

      We may now examine the facts of this case.

      A copy of the plaint which is on record indicates that
respondent  No.1  had entered into an agreement on  6.8.1992
with  respondent No.2 as also the present appellants for the
sale of property bearing No.W-118, Greater Kailash, Part-II,
New  Delhi,  on the first floor (rear portion consisting  of
one drawing room, two bed rooms, one kitchen, two bath rooms
and  one  servant quarter with toilet along with  impartible
and indivisible proportionate rights in the land underneath)
for  a sum of Rs.  7 lakhs out of which a sum of Rs.4  lakhs
was  paid  at the time of the signing of the agreement with
the stipulation that a further sum of Rs.2.25 lakhs would be
paid  by  respondent No.1 on receipt of permission from the
Income Tax Department and Rs.75,000/- would be paid at the
time  of  the  registration of sale deed.   It was  further
pleaded in  the  plaint  that possession of  the  flat was
delivered  to respondent No.1 in pursuance of the  agreement
dated  6th  of August, 1992 in which it was further set out
that all expenses for execution and registration of the sale
deed  would  be borne exclusively by respondent No.1. The
plaint further  recites  that  till February  19,  1996,
respondent  No.1  was not informed by any of the  defendants
about  permission,  if any,  taken   from  the Income Tax
Department  in spite of several requests made by  him from
time to time.  It was also pleaded as follows:-


      "Even  the  permission  under the Income Tax  Act  to
enable the agreement to sell and execution of the sale deed
in  favour  of the Plaintiff was to be obtained not only  by
Defendant  No.1 but  also  by Defendant Nos.  2  and  3  as
mentioned in Clause 12 of the agreement to sell."

      In  respect  of  the  permission of  the Income Tax
Department,  referred  to  above,  para 12  of the  plaint
mentioned as follows:-


      "That  vide letter/reply dated 1st of March 1996, the
Defendant  No.1 had replied to the notice of the  Plaintiff
dated 13th February 1996, wherein a vague and evasive denial
was made by the Defendant No.1 to the contents of the notice
dated  13th  February 1996 of the Plaintiff.  The  Plaintiff
was  informed  for  the first time  about  the income tax
certificate alongwith the said reply by Defendant No.1 which
was obtained by the Defendant No.1.  However, no certificate
was obtained by the Defendant Nos.  2 and 3 as was requisite
under  the  terms and conditions of agreement to sell  dated
6th of August, 1992."

      In  para 16 of the plaint, it was further pleaded  as
under:-


      "That vide reply dated 16th March, 1996, the Plaintiff
had brought it to the notice of the Defendants that the copy
of  certificate alleged to have been obtained in  December
1995  was  never  given or sent to  the  Plaintiff  by the
Defendants.  The Plaintiff had called upon the Defendants to
send  forward  the original certificate obtained by them  in
December  1995 to enable the Plaintiff to proceed further in
the  matter.   The  Plaintiff  had   also  called  upon the
Defendant  Nos.  2  and 3 to obtain  requisite certificate
under  the Income Tax Act as per terms of agreement to sell
dated 6th August 1992."


      The  case of respondent No.1, as set out in the plaint
itself, was  that  while defendants,  namely, the  present
appellants  as also respondent No.2 maintained that they had
obtained  the  necessary  permission  from  the Income Tax
Department  and had sent the same to him, respondent  No.1,
disputed  that fact and maintained that this was not correct
and no Certificate (Permission) of the Income Tax Department
was  ever sent to him by the appellants or respondent  No.2.
On  the own pleadings of respondent No.1, as set out in his
plaint, there was a dispute between the  parties,  namely,
plaintiff and defendants, whether permission from the Income
Tax  Department had  been obtained by the  defendants (the
present  appellants  and  respondent No.2)  and  sent  to
plaintiff  (present respondent No.1) or the said  permission
was,  at  no  time, obtained by the defendants nor  had the
defendants sent it to the plaintiff (respondent No.1). This
was  a vital fact which had an important bearing  upon the
conduct of  respondent No.1. That is to say, if  it was
established  that  the Certificate  (permission)  from the
Income Tax  Department had already been  obtained  by the
defendants  and sent  to him, the denial of  the  plaintiff
would  be  reflective of his attitude that he was not  ready
and  willing  to perform his part of the contract.   On the
contrary,  if it was found that defendants had not  obtained
the  Certificate, the question whether specific performance
could  still  be  decreed   would  have immediately  arisen
particularly  because  of  the relevant provisions  of the
Income Tax Act.  Now, the agreement in question  stipulated
that  the defendants would obtain permission from the Income
Tax  Department and send the same to the plaintiff whereupon
the  plaintiff would  pay  a sum of Rs.2.25  lakhs  to the
defendants  and the balance amount of Rs.75,000/- would  be
paid  at  the  time of the registration of  the sale  deed.
Since, on  the own showing of the plaintiff, as set out  in
the  plaint, the defendants had been asserting that they had
obtained  the permission and sent the same to the plaintiff,
which was not accepted by the plaintiff, there arose between
the  parties  a disputed question of fact which had  to  be
investigated  and  decided particularly as it was likely  to
reflect upon  the conduct of the plaintiff whether  he was
willing to perform his part of the contract or not.  It had,
therefore,  to be proved as a fact that permission  of the
Income Tax  Department had  not   been  obtained  by the
defendants  nor had that Certificate (permission) been sent
to the plaintiff.  If the said Certificate had been obtained
and sent to the plaintiff, the latter, namely, the plaintiff
should have  immediately  paid the  stipulated  amount  of
Rs.2.25 lakhs to the defendants and required them to execute
the  sale  deed in his favour. The plaintiff, according  to
facts  set out in the plaint, waited till February 19, 1996
which  is quite evident from the exchange of notices between
the  parties  which  indicated the existence  of  a  serious
dispute whether the Income Tax Certificate (permission) had
been  obtained by  the defendants   from  the Income Tax
Department  and sent  to  the plaintiff  as alleged  by
defendants  in their notices or it was wrong as asserted  by
the  plaintiff in his notices or the replies to defendants'
notices.

      This  suit has been decreed by the Delhi High Court by
the following judgment:-


      "SUIT NO. 1124/96 & I.A. No.  4303/96.


      On  the  20th  of September, 1996, Mr.   Lalit  Kumar,
learned counsel  for defendant 1 to 3 sought time  to file
written statement  and reply. Time was  granted  but the
written statement  and reply have not been filed.   On the
22nd  of  January,  1997, Mr.  Aseem Mohar for counsel for
defendant  appeared and sought time to file vakalatnama and
written statement/reply and the matter had been adjourned to
this  date.  Today Mr. Kamal Mehta putting in appearance on
behalf of  defandant  No.2 and 3 and  represents  that Mr.
Rajiv  Nayar  has  been engaged by  the  second  and  third
defendants  this  morning and he seeks time to file  written
statement/reply.

      The  defendants  are  adopting  this  tactic  only  to
protract  the  proceedings  and have not filed the  written
statement and reply to the application inspite of sufficient
opportunity having been given.

      Accordingly,   the  suit is   decreed  for   specific
performance  in favour of the plaintiff  and against the
defendants  with the directions to the plaintiff to  deposit
the  balance amount of Rs.3,00,000/- (Rupees Three Lakhs) in
this  court  within six weeks from today.  If the amount  is
deposited  within  six weeks, it  will  be  open  for the
plaintiff to apply for the appointment of a Commissioner for
the  execution of the sale deed.  The defendants  are also
directed to pay the cost of the suit.

      February 10, 1997.  Sd/- JUDGE."

      A perusal of the above judgment will indicate that the
suit  had  been decreed only because of the failure  of the
defendants  in filing the written statement.  This  exhibits
the  annoyance of  the Court which is natural as  no  Court
would allow the proceedings to be delayed or procrastinated.
But  this  should not disturb the judicial  composure  which
unfortunately  is  apparent  in the  instant  case  as the
judgment  neither sets out the facts of the case nor does it
record the process of reasoning by which the Court felt that
the case of the plaintiff was true and stood proved.

      As  will be evident from the facts set out above, the
plaint itself showed a serious disputed question  of fact
involved between the parties with regard to the obtaining of
Certificate  (permission) from the Income Tax Department and
its  communication  by the   defendants  to  the  plaintiff
(Respondent No. 1).  
Since this

      question of fact was reflective of the attitude of the
plaintiff,  whether he was ready and willing to perform his
part of the contract, it had to be proved as a fact that the
Certificate  (permission) from the Income Tax Department had
not  been  obtained by the defendants and, therefore,  there
was  no occasion of sending it to him. If the pleadings  of
respondent  No.  1  were limited in character that  he had
pleaded only this much that the defendants had not obtained
the  Certificate (permission) from the Income Tax Department
and  had  not  sent it to him, this fact  would have  stood
admitted  on account of non-filing of the Written  Statement
by  the defendants.  But Respondent No.  1,  as  plaintiff,
himself pleaded  that "defendants insisted that  they had
obtained  the  Certificate (permission) from the Income Tax
Department  and sent it to him".  He denied its having been
obtained  or  sent  to him.
Non-filing  of the  Written
Statement  would  not resolve this controversy. The  plaint
allegations,  even  if treated as admitted, would  keep the
controversy  alive.
This fact, therefore, had to be  proved
by  the plaintiff  and the Court could  not  have  legally
proceeded  to  pass  a judgment unless it  was established
clearly that  the defendants had committed default  in not
obtaining  the Certificate (permission) from the Income Tax
Department and sending the same to the plaintiff.

      The  agreement between the parties was entered into in
1992 and for four years the plaintiff had kept quiet and not
insisted  for the execution of the sale deed in his  favour.
When he did raise that question, the defendants informed him
that  the  certificate had already been obtained  from the
Income Tax Authorities and sent to him.

      Unfortunately,  the  High Court did not consider this
fact and proceeded almost blindly to pass a decree in favour
of  the plaintiff merely because Written Statement had not
been  filed  in the case.  Learned Single Judge, who  passed
the decree, did not consider any fact other than the conduct
of  the defendants in seeking adjournments of the case for
purposes of filing Written Statement.  So also, the Division
Bench did not consider any fact other than the fact that the
defendants  had been trying to prolong the  proceedings  by
seeking adjournments, and  that  too, by  changing  their
counsel.   The Division Bench also took into  consideration
the fact that the appeal filed by the defendants against the
decree passed by  the Single Judge was beyond time  which
again  indicated their negligence.  No other fact was  taken
into consideration and the decree passed by the Single Judge
was affirmed.

      There  is yet  another infirmity in  the case  which
relates to  the "judgment" passed by the Single  Judge and
upheld by the Division Bench.



      "Judgment"  as defined in Section 2(9) of the Code  of
Civil  Procedure  means the statement given by the Judge  of
the  grounds for a decree or order.  What a judgment  should
contain is indicated in Order 20, Rule 4 (2) which says that
a judgment :

      "shall  contain  a concise statement of the case, the
points for  determination,  the decision  thereon  and the
reasons for such decision."


      It  should be a self-contained document from which  it
should appear as to what were the facts of the case and what
was  the  controversy which was tried to be settled  by the
Court and in what manner.  The process of reasoning by which
the  Court  came to the ultimate conclusion and decreed the
suit should be reflected clearly in the judgment.


      In  an  old case, namely, Nanhe vs.   Saiyad  Tasadduq
Husain (1912) 15 Oudh Cases 78, it was held that passing of
a  mere decree was material irregularity within the  meaning
of Section 115 of the Code and that even if the judgment was
passed on the basis of the admission made by the defendant,
other  requirements which go to constitute "judgment" should
be complied with.

      In Thippaiah and others vs.  Kuri Obaiah, ILR 1980 (2)
Karnataka  1028,
it was laid down that the Court must  state
the  grounds  for  its conclusion in the  judgment  and the
judgment  should  be  in confirmity with the  provisions  of
Section 2(9) of the Code of Civil Procedure.
In  Dineshwar
Prasad Bakshi vs.  Parmeshwar Prasad Sinha, AIR 1989  Patna
139,  it was held that the judgment pronounced under Order 8
Rule  10  must satisfy the requirements  of  "judgment"  as
defined in Section 2(9) of the Code.

      Learned  counsel for respondent No.  1 contended that
the  provisions of Order 20, Rule 1 (2) would apply only  to
contested  cases  as  it is only in those  cases  that "the
points for  determination" as mentioned in this  Rule will
have to be indicated, and not in a case in which the written
statement has not been filed by the defendants and the facts
set  out in the plaint are deemed to have been admitted.  We
do  not agree. Whether it is a case which is contested  by
the  defendants by  filing a written statement, or  a case
which  proceeds ex-parte  and is ultimately decided  as  an
ex-parte  case, or is a case in which the written  statement
is  not filed and the case is decided under Order 8 Rule 10,
the  Court  has to  write  a  judgment which must  be  in
conformity  with the provisions of the Code or at least set
out the reasoning by which the controversy is resolved.

      An  attempt was made to contend that the definiton  of
judgment as set out in Section 2(9) of the Code would not be
applicable to the judgment passed by the Delhi High Court in
its  original  jurisdiction  wherein   the  proceedings are
regulated  by  the provisions of the Delhi High Court Act,
1966. It is contended that the word "judgment" used in the
Delhi  High  Court Act, 1966 would not take its colour from
the  definition of "judgment" contained in Section 2(9)  of
the Code of Civil Procedure.  We do not intend to enter into
this  controversy,  fortunately as it is not contended that
the  Code  of Civil Procedure does not apply, but we  cannot
refrain from expressing that even if it were so, the  Delhi
High  Court  is not absolved of its obligation to  write  a
judgment  as  understood  in common parlance.  Even  if the
definition  were  not  contained  in  Section  2(9)  or the
contents  thereof were not indicated in Order 20 Rule 1 (2)
CPC,  the judgment would still mean the process of reasoning
by  which a Judge decides a case in favour of one party and
against the other.  In judicial proceedings, there cannot be
arbitrary  orders.  A Judge cannot merely say "Suit decreed"
or  "Suit dismissed".  The whole process of reasoning has to
be set out for deciding the case one way or the other. This
infirmity  in  the present judgment is glaring and for that
reason also the judgment cannot be sustained.

      Learned  counsel for respondent No.  1 then tried  to
invoke our discretionary jurisdiction under Article 136  of
the  Constitution  and contended  that on  account  of the
conduct of  the  appellants as also respondent No.   2,  we
should not  grant leave in this case, particularly  as the
sale-deed  has already been executed in his favour  by the
Commissioner  appointed by the High Court.  It is true that
the  jurisdiction under Article 136 of the Constitution is a
discretionary jurisdiction  and   notwithstanding  that  a
judgment  may  not be wholly correct or in  accordance with
law, this Court is not bound to interfere in exercise of its
discretionary  jurisdiction.  But in the instant case, as we
have  already  seen above, it is not merely a matter of the
defendants'  conduct in not filing the Written Statement but
the question of law as to what the Court should do in a case
where  Written Statement is not filed, is involved, and this
question  has  to  be decided so as to provide for  all the
lower  courts  as  to  how the court  should  proceed  in  a
situation  of this nature.  We, therefore, allow the appeal,
set  aside the judgment dated 10.2.1997 passed by the Single
Judge  as  also the judgment dated 29.4.1998 passed  by the
Division  Bench of the Delhi High Court and remand the case
back to the Delhi High Court for a fresh decision.  We allow
the  appellants and Respondent No.  2 to file their  Written
Statement by 15th of October, 1999, with a clear stipulation
that if the Written Statement is not filed by that date, the
decree passed by the High Court shall stand.




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