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.
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.
