Order 8, Rule 10 [CPC]-Non filing of written statement

The condition precedent for proceeding under Rule 10, therefore, is that the court must require the defendant to file the written statement and if one being so required the defendant fails to comply with the order within the time allowed, the court has been given the power to pronounce the judgment against him.

The Statute: Order 8, Rule 10, C.P.C. reads thus:–

“Rule 10, 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.”

Rule 10 contemplates two contingencies, namely (I) where a party from whom a written statement is required under Rule 1 fails to present the same within the time permitted by the Court; and (2) where a party from whom a written statement is required under Rule 9, CPC fails to present the same within the time fixed by the Court. Under Rule 10, when any party fails to present written statement under any of the circumstances stated above, the two courses are open to the Court. First, the Court may ”proceed to pronounce judgment. Secondly, the Court may make such order in relation to the suit as it thinks fit.

The Approach 

In Nagaratnam Pillai v. Kamlathammal A I R 1945 Mad. 299 it was held that rule 10 relates only to rule 9 and cannot be taken to relate to rule 1. The Court has, therefore, no jurisdiction to pronounce judgment under rule 10 of Order 8 against the defendant who has failed to file his written statement. This decision was followed in Misc. (first) Appeal No. 76/58 decided on 31-8-1959. A similar view was expressed in Deokishandas v. Union of India 1961 M P L J 53 : 1961 J L J 163 (Civil Revision No. 376 of 1960 decided on 6-1-1971 (Jabalpur S B). The trial Court was, therefore, in error in proceeding to pronounce judgment under Order 8, Rule 10, CPC merely because the defendant has failed to file his written statement. It is obvious that no direction to file a written statement was given to the defendant applicant in this case as required by rule 9 of Order 8, Civil Procedure Code. The Court had no jurisdiction therefore, to proceed under Order 8, Rule 10, Civil Procedure Code. The impugned order is, therefore, liable to be set aside.

The amendments carried out in Rule 10 are that the written statement required to be filed must be one under Order 8 Rule 1 or Rule 9. Then the next amendment introduced is that the word ‘permitted’ has been used. The unamended Rule 10 only gave discretion to the Court to pronounce a judgment while the amended section makes it mandatory for the Court to pronounce judgment against him. It further says that on the pronouncement of such judgment, a decree shall be drawn up. These words viz., that “on the pronouncement of such judgment a decree shall be drawn up” are introduced by the amendment. It was not to be found in the old Rule 10. Formerly if a judgment was pronounced under Order 8 Rule 10, it was treated as an appealable order and Order 43 Rule 1(b) provided for an appeal. Order 43 Rule 1 (b) is repealed. Therefore on account of the appeal of Order 43, Rule 1(b), the right of filing a Miscellaneous Appeal against the judgment pronounced under Order 8 Rule 10 is taken away. The simple repeal of such a valuable right must have some meaning. Now the amended Rule 10 speaks that “On the pronouncement of such judgment, a decree shall be drawn up” will have to be given some meaning especially in view of the taking away of the right of appeal provided by Order 43 Rule 1(b). The definition of ‘decree’ given in Section 2(2), CPC stated that a decree shall not include any adjudication from which an appeal lies as an appeal from an order. So any judgment pronounced under the unamended Rule 10 could not be followed by a decree within the meaning of Section 2(2) because a Miscellaneous Appeal had been provided by Order 43 Rule 1(b). Therefore, any judgment that was pronounced under the unamended Rule 10 only amounted to an order and therefore the right of appeal under Order 43 Rule 1(b) had been provided. Therefore in view of the repeal of Order 43 Rule 1 (b) and in view of the specific use of the words “a decree shall be drawn up”, it appears to me that the Legislature intended to provide rather better remedies to the party who suffered a decree passed under Order 8 Rule 10, CPC.

Discussion

Apart from the above, a perusal of the order dated 9-4-1992 by the suit was decreed ex parte under Order 8, Rule 10, C.P.C., would show that the court had decreed the suit merely on the ground that the defendants did not file the written statement. The court below has not called upon the plaintiff to give evidence neither has the plaintiff given evidence in support of his case. Even if the defendant does not file written statement the plaintiff still has to prove his case. It appears that the court below presumably thought that the failure of the defendants to file written statement amounts to admission of facts as alleged in the plaint and, therefore, decreed the suit. I am of the view that by adopting this procedure the court has manifestly erred. I am of the view that even if the defendant does not appear at all the court is not empowered to hold that the allegations made in the plaint would be deemed to be correct and so a decree can follow. In the absence of a specific provision to that effect the plaint and the allegations contained therein do not constitute any evidence on the basis of which the court can act. It was, therefore, necessary to record ex parte evidence of the plaintiff. It was held by this Court in the case of Smt. Phuljhari Devi Vs. Mithai Lal and Others, that a mere omission to file the written statement does not amount to an admission of the facts stated in the plaint. A similar view has been taken by the Delhi High Court in the case reported in Union of India Vs. Bhagwan Dass, . In the said case it has been held that the failure of the defendant to file the written-statement does not raise the presumption that the defendant admits all the allegations contained in the plaint and so the allegations of the plaintiff must be deemed to be correct. The court is not entitled to act on the allegations of the plaint and it mut act on the proved evidence before it. In the case of Smt. Krishna Devi Vs. Raj Kumar and Another, the said Court had also taken a similar view when it held that the judgment the court is enabled to pronounce under Rule 10 of Order 8, C.P.C. should conform to how the expression is defined in Section 2(g), C.P.C. It should state the ground on which it is based. A mere statement that the suit of the plaintiff is decreed under Order 8, Rule 10, C.P.C. could not be sustained.[(1994) AIR(Allahabad) 193 ]

1. Ram Rakhan and Another Vs. Mahant Govind Das and Another, AIR 1945 All 352 : (1945) 15 AWR 186
2. Smt. Krishna Devi Vs. Raj Kumar and Another, AIR 1986 Raj 72
3. Union of India Vs. Bhagwan Dass, AIR 1976 Delhi 96
4. Smt. Phuljhari Devi Vs. Mithai Lal and Others, AIR 1971 All 494

Supreme Court Observation

In Kailash v. Nankhu , the Supreme Court had considered the provisions of Order 8 Rule 1CPC and observed as under:

…(iv) the purpose of providing the time schedule for filing the written statement under Order VIII, Rule 1, CPC is to expedite and not to scuttle the hearing. The provisions spells out a disability on the defendant. It does not impose an embargo on the power of the Court to extend the time. Though the language of the proviso to Rule 1, order VIII, CPC is couched in negative form, it does not specify any penal consequences following from the non-compliance. The provision being in the domain of the procedural law, it has to be held directory and not mandatory. The power of the Court to extend time for filing the written statement beyond the time schedule provided by order VIII, Rule 1 CPC is not completely taken away.

(v) Though Order VIII, Rule 1, CPC is a part of procedural law and hence directory, keeping in view the need for expeditious trial of civil cases, which persuaded Parliament to enact the provision in its present form, it is held that ordinarily the time schedule contained in the provisions is to be followed as a rule and departure therefrom would be by way of exception. A prayer for extension of time made by the defendant shall not be granted just as a matter of routine and merely for the asking more so when the period of 90 days has expired. Extension of time may be allowed by way of an exception, for reasons to be assigned by the defendant and also be placed on record in writing, howsoever, briefly, by the Court on its being satisfied. Extension of time may be allowed if it is needed to be given for circumstances which are exceptional occasioned by reasons beyond the control of the defendant and grave injustice would-be occasioned if the time was not extended. Costs may be imposed and affidavit or documents in support of the grounds pleaded by the defendant for extension of time may be demanded, depending on the facts and circumstances of a given case.

Extension of Time

It is profitable to reproduce Section 148 of CPC herein:

Section 148. Enlargement of time.- Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may in its discretion, from time to time enlarge such period, even though the period originally fixed or granted may have expired.

While going through this provision of law, one comes to inescapable conclusion that this provision nowhere commands that the same court should extend the time which has fixed the time frame. I am of the considered view that ‘court’ includes subordinate court or appellate court/revisional court.

This point has come up for consideration before the Madras High Court in case titled Abdul Shaker v. Abdul Rahman reported in AIR 1923 Mad 284. Their Lordships have held that if the appellate court has fixed time for doing an act, the original court has jurisdiction and powers to grant extension of time. It is profitable to reproduce relevant portion of the judgment herein:

The appeal therefore be dismissed with costs. The time for the completion will be extended by this decree for a period of two months. It must be understood that the original Court still has jurisdiction in this matter and has full powers to deal with any point that may arise including, if necessary, an application for further time.

This point also came up for consideration before the Andhra Pradesh High Court in the year 1959 and their Lordships have held that trial Court has the powers to extend the time even though the appellate court has fixed the time. Their Lordships also discussed the scope of Section 148, CPC. It is profitable to reproduce paras 3 and 4 of the said judgment Mareddi Venkata Rami Reddy Vs. Mareddi Adinarayana Reddy and Others, , herein:

(3) This authority was followed by another Bench of the Madras High Court in the case of Mahommadalli Sahib Vs. Abdul Khadir Saheb, and by the Allahabad High Court in Someshwar Dayal and Others Vs. Widow of Lalman Shah and Others, .

(4) It would thus appear that, though we had fixed a fresh period in our judgment while disposing of A. S. No. 627 of 1954 the power of the trial Court is still intact to consider the question of extension in the circumstances as mentioned in the affidavits filed in support of the petition. In these circumstances, we need not go into the larger question whether it is open to the appellate court to extend further time in the present circumstances.

The Allahabad High Court has held in case Sital Din and Others Vs. Annant Ram , that time given by appellate court can be extended by trial Courts.

The Apex Court has in case titled Gangadharrao Narayanrao Majumdar Vs. The State of Bombay and Another, , held that the Court is clothed with ample powers to extend the time and pass such orders in the interests of justice in order to do justice between the parties. Their Lordships have further held that the Court has powers to extend time even if the Court has passed pre-emptive procedural orders.

The Apex Court in a case titled as Smt. Jodhayan Vs. Babu Ram and Others, , has held that the powers given to the Court u/s 148, CPC are discretionary and the purpose of the said powers is just to secure the ends of justice in case of necessity. It is profitable to reproduce relevant portion of the said judgment herein:

…The power to the Court u/s 148 is discretionary and is given for the purpose of securing the ends of justice in case of necessity. In our opinion, the High Court committed an error in not adverting to, and not exercising its powers u/s 148, CPC and in dismissing the appeal without going to the merit of the matter.

 Court has also held in case Satinder Subarwal v. Om Prakash reported in 1977 (8) JKLR 50, that trial Court is competent to grant extension of time while exercising powers u/s 148, CPC even though time is fixed by the appellate Court. It is profitable to reproduce relevant portion of the said judgment herein:

…secondly the legal position is established that even the trial Court is competent to grant extension in time in exercise of its power u/s 148 of the C.P.C. In my opinion there is no warrant for the proposition that only the appellate Court could exercise this power and not the trial Court….

1. Someshwar Dayal and Others Vs. Widow of Lalman Shah and Others, AIR 1958 All 488
2. Mahommadalli Sahib Vs. Abdul Khadir Saheb, (1930) 59 MLJ 351
3. Gangadharrao Narayanrao Majumdar Vs. The State of Bombay and Another, AIR 1961 SC 288 : (1961) 1 SCR 943
4. Smt. Jodhayan Vs. Babu Ram and Others, AIR 1983 SC 57 : (1982) 2 SCALE 1061 : (1983) 1 SCC 26 : (1983) 1 SCR 844 : (1983) 15 UJ 15
5. Mareddi Venkata Rami Reddy Vs. Mareddi Adinarayana Reddy and Others, AIR 1960 AP 271

We find sufficient assistance from the apt observations of this Court extracted hereinabove which has held that the effect of non-filing of the written statement and proceeding to try the suit is clearly to expedite the disposal of the suit and is not penal in nature wherein the Defendant has to be penalised for non filing of the written statement by trying the suit in a mechanical manner by passing a decree. We wish to reiterate that in a case where written statement has not been filed, the Court should be a little more cautious in proceeding under Order 8 Rule 10 CPC and before passing a judgment, it must ensure that even if the facts set out in the plaint are treated to have been admitted, a judgment and decree could not possibly be passed without requiring him to prove the fact pleaded in the plaint. It is only when the Court for recorded reasons is fully satisfied that there is no fact which needs to be proved at the instance of the Plaintiff in view of the deemed admission by the Defendant, the Court can conveniently pass a judgment and decree 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 arising from the plaint itself giving rise to two versions, it would not be safe for the Court to record an ex-parte judgment without directing the Plaintiff to prove the facts so as to settle the factual controversy. In that event, the ex-parte judgment although may appear to have decided the suit expeditiously, it ultimately gives rise to several layers of appeal after appeal which ultimately compounds the delay in finally disposing of the suit giving rise to multiplicity of proceeding which hardly promotes the cause of speedy trial. However, if the Court is clearly of the view that the Plaintiff’s case even without any evidence is prima facie unimpeachable and the Defendant’s approach is clearly a dilatory tactic to delay the passing of a decree, it would be justified in appropriate cases to pass even an uncontested decree. What would be the nature of such a case ultimately will have to be left to the wisdom and just exercise of discretion by the trial court who is seized of the trial of the suit.

1. C.N. Ramappa Gowda Vs. C.C. Chandregowda (Dead) by L.Rs. and Another, AIR 2012 SC 2528 : (2013) 4 CTC 865 : (2012) 3 RCR(Civil) 331 : (2012) 4 SCALE 541 : (2012) 5 SCC 265 : (2012) AIRSCW 2510 : (2012) 3 Supreme 137
2. Balraj Taneja and Another Vs. Sunil Madan and Another, AIR 1999 SC 3381 : (1999) 6 JT 473 : (1999) 5 SCALE 400 : (1999) 8 SCC 396 : (1999) 2 SCR 258 Supp : (1999) AIRSCW 3345 : (1999) 8 Supreme 27

Legal position regarding the power of the Court to extend the period mentioned in Order 8 Rule 1 C.P.C. beyond the 90 days period

It is no longer rest integra. Notwithstanding the use of the word ‘shall’ in the said provision, it has been held that doctrine of harmonious construction is required to be applied to construe the provisions of Order 8 Rule 1 and Order 8 Rule 10 C.P.C. Court is given the discretion to pronounce or not to pronounce the judgment against the defendant even if written statement is not filed and instead pass such orders as it may think fit in relation to the suit. Court has the power and discretion to allow the defendant to file written statement even after expiry of a period of 90 days provided in Order 8 Rule 1 C.P.C. Reference in this connection may be made to Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), wherein the Court observed as under:

The use of the word ‘shall’ in Order VIII Rule 1 by itself is not conclusive to determine whether the provision is mandatory or directory. We have to ascertain the object which is required to be served by this provision and its design and context in which it is enacted. The use of the word ‘shall’ is ordinarily indicative of mandatory nature of the provision but having regard to the context in which it is used or having regard to the intention of the legislation, the same can be construed as directory. The rule in question has to advance the cause of justice and not to defeat it. The rules of procedure are made to advance the cause of justice and not to defeat it. The rules of procedure are made to advance the cause of justice and not to defeat it. Construction of the rule or procedure which promotes justice and prevents miscarriage has to be preferred. The rules or procedure are hand-maid of justice and not its mistress. In the present context, the strict interpretation would defeat justice.

In construing this provision, support can also be had from Order VIII Rule 10 which provides that 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, the Court shall pronounce judgment against him, or make such other order in relation to the suit as it thinks fit. On failure to file written statement under this provision, the Court has been given the discretion either to pronounce judgment against the defendant or make such other order in relation to suit as it thinks fit. In the context of the provision, despite use of the word ‘shall’, the court has been given the discretion to pronounce or not to pronounce the judgment against the defendant even if written statement is not filed and instead pass such order as it may think fit in relation to the suit. In construing the provision of Order VIII Rule 1 and Rule 10, the doctrine of harmonious construction is required to be applied. The effect would be that under Rule 10 of Order VIII, the court in its discretion would have power to allow the defendant to file written statement even after expiry of period of 90 days provided in Order VIII Rule 1. There is no restriction in Order VIII Rule 10 that after expiry of ninety days, further time cannot be granted. The Court has wide power to ‘make such order in relation to the suit as it thinks fit’. Clearly, Therefore, the provision of Order VIII Rule 1 providing for upper limit of 90 days to file written statement is directory. Having said so, we wish to make it clear that the order extending time to file written statement cannot be made in routine. The time can be extended only in exceptionally hard cases. While extending time, it has to be borne in mind that the legislature has fixed the upper time limit of 90 days. The discretion of the Court to extend the time shall not be so frequently and routinely exercised so as to nullify the period fixed by Order VIII Rule 1.

5. It would be seen that time is not to be extended in a routine manner since the legislature has fixed the upper time limit of 90 days. The discretion of the Court to extend the time shall not be used frequently and routinely so as to nullify the period fixed. Reference may also be usefully made to Kailash Vs. Nanhku and Others, , J.M. Overseas v. Vijay Kumar Mangla reported at (138) 2007 DLT 156 Delhi, Lalit Chandra Raisurana v. Arun Raisurana reported at AIR 2005 Jharkhand 39 and Nachipeddi Ramaswamy Vs. P. Buchi Reddy, .

The court shall pronounce the Judgment doesn’t mean Judgment to be passed in favourt of Plaintiff without Evidence.

According to Sub-rule (2) of Rule 4 of Order 22 Code of Civil Procedure, the judgment of courts shall contain concise statements of the case, points for determination, the decisions thereon and the reasons for such decisions.

If a written statement is not filed, Order 8, Rule 10 does not postulate a judgment to be pronounced and decree passed automatically. The judgment pronounced under Order 8, Rule 10 should indicate that Court has applied its mind to the merits of the case before decreeing the suit. Court in M/s. Kuvarp Industries v. State Bank of Mysore, ILR 1984 KAR 1086 : (AIR 1985 Kar 77) has held as under:

“Therefore, the principles laid down by this Court in the said case require that even in ex parte cases the Court should apply its mind to the allegations made in the plaint and should convince its conscience to find out as to whether the allegations made by the plaintiff are really sufficient and proved to the extent as to enable him to get a decree in the matter. The judgment and decree passed in this case, in my opinion, are not in consonance with law and rules at all. Therefore, the said judgment cannot be allowed to stand”.

In Maya Devi v. Lalta Prasad (2015) 5 SCC 588 : (AIR 2014 SC 1356), the Hon’ble Supreme Court has held as under:

“The absence of the defendant does not absolve the trial court from fully satisfying itself of the factual and legal veracity of the plaintiff’s claim; nay, this feature of the litigation casts a greater responsibility and onerous obligation on the trial Court as well as the executing court to be fully satisfied that the claim has been proved and substantiated to the hilt by the plaintiff. Reference to Shantilal Gulabchand Mutha v. TELCO Ltd., will be sufficient. The failure to file a written statement. thereby bringing Order 8, Rule 10 CPC into operation, or the factum of the defendant having been set ex parte, does not invite a punishment in the form of an automatic decree. Both under Order 8, Rule 10 CPC and on the invocation of Order 9 CPC, the Court is nevertheless duty bound to diligently ensure that the plaint stands proved and the prayers therein are worthy of being granted”.

1. M/s. Kuvarp Industries Vs. State Bank of Mysore, ILR 1984 Kar 1086 : AIR 1985 Kar 77
2. Maya Devi Vs. Lalta Prasad, (2015) 5 SCC 588 : AIR 2014 SC 1356

Whether judgment shall be pronounced without recording reasons, the essential requisites of a judgment cannot be left out even in the’ judgment under Rule 10 merely because the Court has power to pronounce judgment against the party who fails to present written statement called for by the Court. Section 9 (2) defines ‘judgment’. to moan the statement given by the Judges of the grounds of a decree or order. Order 20 Rule 4, CPC provides that other than judgments of Small Cause Courts judgments of other Courts shall contain concise statement of the case, the points for determination, the decision thereon, and the reasons of such decision. That apart, the necessity to record reasons is a cardinal principle of rule of law while deciding a case affecting rights of the parties. The recording of reasons in deciding the case affecting rights of the parties is imperative and a mandatory requirement. The order or judgment affecting the rights of the parties should record relevant reasons which have been taken into consideration by the Court in coming to its final conclusion thereby enabling the parties seeking justice as well as the superior Court where an appeal lies to know the mind of the Court as well as the reasons for its findings.

Doubtful Plaint 

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.

1. C.N. Ramappa Gowda Vs. C.C. Chandregowda (Dead) by L.Rs. and Another, AIR 2012 SC 2528
2. Balraj Taneja and Another Vs. Sunil Madan and Another, AIR 1999 SC 3381

Appeal and Revision

Rule 10 of Order 8 it was specifically provided that upon such judgment, under the above Rule 10 a decree shall be drawn up. As decree follows after judgment is passed under above Order 10, an appeal would lie u/s 96 Code of Civil Procedure. Therefore, the above Clause (b) of Rule 1 of Order 43 was omitted to prevent 2 appeals. According to Section 115 CPC this Court has jurisdiction to interfere in a case decided by subordinate court in which no appeal lies. As judgment passed under Order 8 Rule 10 is followed by a decree, such decree being appellable u/s 96 CPC a revision u/s 115 CPC is not maintainable.  Delhi High Court in Nand Gopal Bacchas and Others Vs. Bank of India, wherein the learned single judge held that against the judgment passed under Order 8 Rule 10 CPC no revision petition would lie as an appeal is maintainable.

1. N. Jayaraman Vs. Glaxo Laboratories India Ltd., Madras, AIR 1981 Mad 258 : (1981) 94 LW 362
2. A.K.P. Haridas Vs. V.A. Madhavi Amma and Others, AIR 1988 Ker 304
3. M. Manick Peter and Others Vs. K. Surendranathan, AIR 1988 Ker 161
4. Nand Gopal Bacchas and Others Vs. Bank of India, AIR 1982 Delhi 280 : (1982) 21 DLT 323 : (1982) 3 DRJ 228 : (1982) RLR 287

It is a fact that the opposite party No. 1 did not file written statement despite numerous opportunities given to him by the learned court below and even on the date of ex parte hearing only a petition for adjournment of the ex parte hearing was filed. If the learned court by reason of the defendant’s failure to file written statement treated the claims of the plaintiff as admitted and pronounced judgment even then a petition under Order 9 Rule 13 would lie for setting aside the decree passed under Order 8 Rule 10 instead of preferring appeal. There is, however, difference in opinion among some High Courts as to whether decree passed under Order 8 Rule 10 CPC can be treated as an ex parte decree for setting aside which an application under Order 9 Rule 13 CPC shall lie. According to Delhi High Court a decree which is passed by the Court against the defendant who appears but fails or neglects to file written statement within the time granted by the court cannot be said to be an ex parte decree and cannot be set aside under Order 9 Rule 13 CPC. (Traders Bank Ltd. vs. Avtar Singh reported in AIR 1988 Del, 55). In Ramesh vs. Corporation reported in AIR 1987 Calcutta 111 it was held that if written statement was not filed within time, the trial court could accept it even at the stage when ex parte hearing is concluded and the matter is adjourned for delivery of judgment.

In M/s. Kuvarp Industries vs. State Bank of Mysore reported in AIR 1985 Kar 77 it has been held that the insertion of the word ‘decree’ in Rule 10 is meant to give an alternate relief under Order 9 Rule 13 CPC instead of driving the party to a regular appeal.

 In A.K.P. Haridas Vs. V.A. Madhavi Amma and Others, it has been observed that there is nothing to indicate that the need to write a speaking and reasoned judgment is dispensed with. There is no indication that a decree passed under this Rule cannot be ex parte.

 In M. Manick Peter and Others Vs. K. Surendranathan, it has been held that a petition under Order 9 Rule 13 is maintainable against the decree passed under Order 8 Rule 10.

1. A.K.P. Haridas Vs. V.A. Madhavi Amma and Others, AIR 1988 Ker 304
2. M. Manick Peter and Others Vs. K. Surendranathan, AIR 1988 Ker 161

Calcutta High Court allowed Cross-examination by Defendant failed to file WS

Meaning of So-called Ex-party:

If the judgment and decree are pronounced under Order 8 Rule 10 (amended), then the party would have a right to proceed under Order 9 also. Then the question would arise whether the word ‘hearing’ used in Rule 2, and Rule 3 has got a separate connotation. Order 8 of the CPC relates to the filing to the written statement, set off and counter claim. Rule 1 says that the defendant shall at or before the first hearing or within such time as the Court may permit a written statement of his defence. Therefore, the word ‘hearing’ used in Order 8 Rule 1, CPC says that the stage of hearing starts from the moment the defendant puts in his appearance in the Court after being served with summons. Therefore the word ‘hearing’ used in Rule 2 and Rule 3 of Order 17, CPC also would have the same meaning. If it is so then any judgment or decree passed under Order 8 Rule 10 would clearly amount to a judgment and decree popularly called as ex parte judgment and ex parte decree. The word ‘ex parte’ only means that pronounced in the absence of a party. It has not got any other meaning. If it is so, then Order 9 Rule 13, CPC would be applicable even to a case where a judgment and decree have been passed under Order 8 Rule 10, CPC.

1. N. Jayaraman Vs. Glaxo Laboratories India Ltd., Madras, AIR 1981 Mad 258 : (1981) 94 LW 362
2. Nand Gopal Bacchas and Others Vs. Bank of India, AIR 1982 Delhi 280 : (1982) 21 DLT 323 : (1982) 3 DRJ 228 : (1982) RLR 287

The expression “ex-parte decree” has not been defined in the Code and therefore, the aforesaid expression has to be understood in the context it is used. Order 8 Rule 10 of the CPC provides that in case the defendant fails to present the written statement within the time permitted or fixed by the Court, the court shall pronounce judgment and on the pronouncement of such judgment a decree shall be drawn. Thus a decree passed under Order 8 Rule 10 of the Code when written statement is not filed is an exparte decree. We are of the opinion that in the face of the language of Order 8 Rule 10 of the CPC and that of Order 9 Rule 13 restricted meaning to the words “ex-parte decree”, is not fit to be given. It is worth mentioning that Order 9 Rule 13 uses the expression “in any case” and in the background thereof, it is difficult to hold that a degree passed in terms of Order 8 Rule 10 of the Code is not an ex-parte decree and not covered under Order 9 Rule 13 of the Code.

1. A.K.P. Haridas Vs. V.A. Madhavi Amma and Others, AIR 1988 Ker 304
2. M. Manick Peter and Others Vs. K. Surendranathan, AIR 1988 Ker 161
3. Gujrat Co-operative Oil Seeds Growers Federation Vs. Smt. Ramesh Kanta Jain, AIR 1994 Delhi 367 : (1995) ILR Delhi 735

Limitation and Res Judicata

In Arjun Singh Vs. Mohindra Kumar and Others, . Their Lordships of the Supreme Court while considering the principle of res judicata with respect to the order passed under Order 9, Rules 7 and 13, held:

Order 9, Rule 7 does not put an end to the litigation nor does it involve the determination of any issues in controversy in the suit. A decision or direction in an interlocutory proceeding of the type provided for by Order 9, Rule 7 is not of the kind which can operate as res judicata so as to bar the hearing on the merits of an application under Order 9, Rule 13″In Kamal Singh Vs. Sat Pal, in para 4 it was held:

The defendant against whom an order declaring him to be proceeded ex parte was passed on the date of the first hearing is entitled to come in and take part in the trial at a later stage. If he agrees to be bound by what has taken place during his absence he need not make an application under Order 9, Rule 7, C.P.C. for getting the order set aside. He can continue from the stage at which he appears. However, if he desires to cross-examine the witnesses examined before he entered appearance he can apply under Rule 7, of Order 9 and get an order, in which case he can claim an opportunity to cross examine the witness examined before he entered appearance. In such a case, he seeks to be relegated back to the position he would have been if he were present on the day on which evidence was taken in his absence. Had he been so present, he would have got an opportunity to cross-examine the plaintiff’s witnesses. This is the right which he can exercise after getting an order under Order 9, Rule 7, C.P.C.

In the said case, reliance was placed on the decision in Kumara Pillai Vs. Thomas, . In Delhi Development Authority Vs. Shanti Devi and Another, .

Under the Limitation Act no period is prescribed for filing an application for setting aside the order proceeding ex parte. Under Rule 7 of Order 9 of the Code the defendant is allowed to file an application at or before the next date of file an application at or before the next date of hearing and if he assigns good cause for his non-appearance on the previous date of hearing the Court may set aside the order proceeding exparte… There is no rule that an application under Order 9, Rule 7 is to be filed within 30 days from the date of the order proceeding ex parte…

In Sangram Singh Vs. Election Tribunal, Kotah, Bhurey Lal Baya, after extracting the relevant provision Order 9, Rule 7, Order 8, Rule 10, Their Lordships observed:

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 Order 9, Rule 7 makes it clear that unless good cause is shown the defendant 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 Order 8, Rule 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.

Thus, it is clear from the above decisions, there is no limitation for filing a petition under Order 9, Rule 7, Code of Civil Procedure. Further the question of filing written statement also does not arise as the first defendant is only adopting the written statement filed by her daughter and she wants to give evidence in support of her case. The suit is filed only on the basis of an alleged oral agreement between her and the plaintiff and the same is disputed by her even prior to the filing of the suit by issuing a reply notice and as such no prejudice would be caused to the other side. Further, she was in Malaysia at the time when the summons was served on her. In the circumstances, it cannot be said that the discretion used by the court below in allowing the application under Order 9, Rule 7, C.P.C. is illegal or improper.

1. Kikishru Nadershaw Chinoy Vs. Nargesh Kikishru Chinoy Nee Nargesh Dorabji Tarapore, AIR 1942 Mad 159
2. Nataraja Pillai (died) and Another Vs. Appasami Naidu, (1949) 62 LW 328 : (1949) 1 MLJ 523
3. Gokarakonda Venkatasubbiah Vs. Daliparthi Lakshminarasimham, AIR 1925 Mad 1274 : (1925) 49 MLJ 273
4. Sangram Singh Vs. Election Tribunal, Kotah, Bhurey Lal Baya, AIR 1955 SC 425 : (1955) 2 SCR 1
5. Arjun Singh Vs. Mohindra Kumar and Others, AIR 1964 SC 993 : (1964) 5 SCR 946
   Kamal Singh Vs. Sat Pal, AIR 1986 P&H 19
6. Kumara Pillai Vs. Thomas, AIR 1961 Ker 287
7. Delhi Development Authority Vs. Shanti Devi and Another, AIR 1982 Delhi 159 : (1981) 20 DLT 415

Practice Guidelines by Gauhati High Court

Order 8 Rule 10 CPC reads:

 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.

A perusal of the provisions as quoted above will make it clear that such a course can be adopted only when a party fails to present a written statement called for by the Court. Here in the present case, as I have already mentioned above that there is no order to the effect that the Defendants were required/directed to submit their written statement. If such a course is adopted then there will be no scope for exparty hearing as provided under Order 9 Rule 6 of CPC Not only this Order 13 Rule 1 will also be ignored in case such a slip-short manner is allowed to be continued. Order 13 CPC reads:

Documentary evidence to be produced (at or before the settlement of issues ) – 1. The parties or their pleaders shall produce, (at or before the settlement of issues ), all the documentary evidence of every description in their possession or power, on which they intend to rely, and which has not already been filed in Court, and all document which the Court has ordered to be produced.

(2) The Court shall receive the document so produced; provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs.

 In view of the above provisions it is required that  after receipt of the written statement the Court is to fix a date for submission of the relevant document and the Court shall receive those documents if they are accompanied by an accurate list (firisti index etc.)

 It is however, true that document on which the Plaintiff’s suit is based are to be produced along with the plaint (Order 7 Rule 14) and the Defendants are also required under Order 8 Rules 8-A(1) to produce the relevant documents along with the written statement. But thereafter comes the provision of Order 11 Rule 15 which enables each party for inspection of the documents. The Order 11 Rule 1 also enables a party to obtain from his opponent material facts or information as to the documents or admission which will support his information or damage his opponent’s case. Therefore, by virtue of this provision a party is entitled to submit interrogatories.

EXECUTION OF DECREE [ALLAHABAD HC]

Whether the decree, on the basis of an order, which is not a judgment, is executable ?

This question was considered by the Allahabad High Court in Amod Kumar Verma Vs. Hari Prasad Burman and Others, AIR 1958 All 720 , where it was held that such a decree is nullity by observing as under :–

“There is no judgment pronounced by the trial Court. It has only passed an order refusing to set aside the award and at once passed a decree. The decree is null and void in the absence of a Judgment. After refusing to set aside the award the trial Court ought to have pronounced a judgment on the merits of the disputes between the parties as settled by the award.”

Union-of-india-uoi-vs-swastic-construction-company-and-others[JKHC]

What shall not be done in any case

The question which, therefore, arises for consideration is under what circumstances the first course, viz, pronounce judgment is to be adopted. There may be cases where the claims are barred by limitation; there maybe cases where plaint of the plaintiff, or setoff or counterclaim of the defendant, is not in accordance with law. Even then, if the penalty provided under Rub 10 is to be imposed by pronouncing judgment irrespective of the merits of the case, it will cause a great injustice in the given case. The appellate Court shall also find difficult to interfere with the judgment on merits, except on the question whether the discretion to adopt the first course has been exercised properly, as under Rule 10 the judgment should always be against the party failing to present written statement irrespective of the merits of the case. Although, law is that every allegation of facts in the pleading, if not denied, shall be taken to be admitted, the Court may in its discretion require any fact so admitted to be proved. Therefore, this power of the Court has to be exercise in rare and exceptional cases after applying its mind to the facts and circumstances of the case.