What happens when the defendant appears in Court upon the service of the of summons and never files his written statement.

  1. Under Order 8 Rule 5 (2) of the CPC, if the defendant has not filed a pleading (which is the written statement) the Court can pronounce judgment upon the facts contained in the plaint but, the Court may require such facts to be proved.
  2. This would be the case when the defendant appears upon the service of the writ summons but does not file any written statement. The Court can pronounce the judgment but the judgment may be pronounced upon the facts stated by the plaintiff being proved. To prove such facts the plaintiff must file an affidavit of evidence and an affidavit of documents along with his documents. The Court would consider the oral and documentary evidence. The defendant has appeared in the suit but the defendant has not filed any written statement. Hence the defendant shall have to be heard but shall not be entitled to place on record his independent case or his evidence in support thereof. He shall only assist the Court against the plaintiff’s  case. Hence for the proof of facts by the plaintiff in his affidavit of evidence the defendant may cross examine the plaintiff. It is only then that the facts stated in the affidavit would stand proved since the defendant had appeared in the suit.
  3. Order 8 Rule 10 is much the same. Where defendant does not file written statement within time fixed by the Court, the Court shall pronounce judgment against him.
  4. This would be done by the Court upon suing the plaintiff’s case in his pleadings and evidence and the defendant’s assistance by arguing and cross examining the plaintiff, without more.
  5. Consequently when the defendant has appeared an exparte decree is never passed. The judgment is pronounced. The judgment may be upon the facts as stated in the plaint, without more. The judgment may also be upon the facts stated in the plaint which are directed to be proved.
  6. The defendants can cross-examine the plaintiff’s witness.

Refer  BALRAJ TANEJA AND ANOTHER VS SUNIL MADAN AND ANOTHER [ALL SC 1999 SEPTEMBER ]

Now, we come to our reasonings and inferences. A reading of Rule 5(2) and Rule 10 of Order 8 of the CPC and the law laid down by the Supreme Court in Balraj Taneja’s case, supra, it is now clear that even if the defendant does not file his written statement, it is incumbent upon the Trial Court to apply itself to the facts pleaded by the plaintiff and come to its own conclusion that even if the facts as stated in the plaint are taken as true, it does not create any in built-inconsistency on facts requiring the same to be proved by the plaintiff by adducing evidence. In case, the Court, after going through plaint, finds that the facts disclosed therein gives rise to two versions of the foundational facts on which the relief is sought to be based, then it will be necessary for the Court to direct the plaintiff to lead evidence, so that on appreciation thereof the Court can ascertain the correct facts and thereupon either decree or dismiss the suit. But, if the Court finds that the facts pleaded are consistent and forms good basis for awarding the relief claimed, then the Court is required to decree the suit on the basis of the facts pleaded in the plaint, since in absence of written statement filed by the defendant controverting any of those facts, the same has to be taken as admitted. [Karnataka High Court Smt. Aisha Bi And Another vs M. Shamsher Khan on 24 November, 2000 Equivalent citations: ILR 2001 KAR 546, 2001 (1) KarLJ 451, 2001(2)1CC[KAR](DB) 640]